The telemarketing industry was rocked this week by a Telephone Consumer Protection Act (“TCPA”) decision out of the United States Court of Appeals for the Fifth Circuit. Long held assumptions for what the applicable TCPA consent standards are may have been turned on their head.
What was the Fifth Circuit’s TCPA Consent Ruling?
At issue in the underlying lawsuit was whether prerecorded calls made to the plaintiff violated the TCPA. It seems that the Plaintiff had provided his cell phone number to the Defendant when he entered into a service plan agreement. He claimed that he only provided his cell phone number so that the Defendant could contact him with appointment reminders. In his complaint before the Court, he complained that the marketing messages that he subsequently received were sent to him without his prior express written consent.
Since 2013, the Federal Communications Commission (“FCC”) has maintained that telephone calls which include or introduce an advertisement or constitute telemarketing using an artificial or prerecorded voice are forbidden unless made with the prior express written consent of the called party. The Plaintiff, however, found no safe haven in relying upon this nearly 15-year-old rule.
The Fifth Circuit Court of Appeals rejected the Plaintiff’s argument. It held that the TCPA requires only prior express consent and that the FCC had “wrongly interpreted the TCPA when it” included in its regulations a prohibition that Congress had not included in the law itself. Ultimately, the Fifth Circuit found that the Plaintiff’s provision of his cellphone number as part of the subject service plan agreement, without any limiting instructions on how he would permit being contacted on such number, constituted prior express consent to be contacted for TCPA purposes.
As readers of this blog know, the United States Supreme Court recently upended the rules governing administrative law. Specifically, the decisions rendered in Loper Bright and McLaughlin have freed courts to both reexamine the FCC’s TCPA regulations and to disregard them when the court finds that the FCC promulgated regulations that are inconsistent with the applicable court’s interpretation of the statute. The Fifth Circuit is the first Court of Appeals to use that freedom to go so far as to effectively dismiss the FCC’s long-honored TCPA consent rules.
What Does the TCPA Consent Ruling Mean For Your Business?
It is important to keep in mind that while the Fifth Circuit encompasses Texas, Louisiana, and Mississippi, the Court is just one of a dozen federal circuit courts in the country. For that reason, the immediate impact of this ruling may prove limited, as its application will be confined to calls placed to residents of the states that comprise the Fifth Circuit unless or until additional federal circuit courts reach similar conclusions regarding TCPA consent. Similarly, the particular facts of this case may be difficult for most lead generators to replicate. Nevertheless, the Fifth Circuit’s ruling underscores both: (1) the renewed availability of previously long-shot arguments against the enforcement of various FCC TCPA regulations; and (2) the rapidly-evolving TCPA regulatory climate caused by the recent success of such arguments. Given this atmosphere of uncertainty, it is more important than ever to ensure that your company works with well-seasoned attorneys when facing a TCPA lawsuit. The TCPA litigators at KMT have been at the vanguard of challenging FCC regulations for purposes of aggressively defending TCPA lawsuits.
If you need assistance with updating your telemarketing practices and procedures or have been sued for violating the TCPA or a state-level telemarketing statute, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
Attorney Advertising
Photo by Chris Yang on Unsplash
Similar Blog Posts:
Georgia TCPA Text Message Case Dismissed!
