New TCPA Petitions May Be More Good News for Telemarketers

blogpic5-2The Federal Communication Commission (“FCC”) announced late last week that it is seeking public comment on petitions that call into question certain provisions of the new Telephone Consumer Protection Act (“TCPA”) regulations, which went into effect on October 16th, 2013.

The TCPA Generally

The TCPA regulates unsolicited telemarketing calls, texts and faxes utilizing autodialers and/or pre-recorded messages, and has been the basis for several high profile class action lawsuits.  As we have detailed in many posts and legal articles, the Telephone Consumer Protection Act (“TCPA”) provides for, among other things, statutory damages to individuals who receive unsolicited calls or text messages to cell phones.  We have also discussed how companies that hire third parties to advertise on their behalf can be held “vicariously liable” for the acts of those third party advertisers and predicted that many class action suits would likely arise in the future.  Those predictions were quickly confirmed.

New TCPA Petitions

Currently, there are several TCPA-related petitions pending before the FCC, two (2) of the most significant of which we will address herein.  The first focuses on the FCC’s definition of an automated telephone dialing system or autodialer.  As previously described on this blog, the FCC and courts across the country, with some exceptions, have taken a very broad stance on the definition of an autodialer: providing guidance/rulings holding that it is any device that has the capacity to produce, store and call telephone numbers using a random or sequential number generator.  Based on the huge settlements and penalties being levied against telemarketers for TCPA regulation infractions, we have advised our clients to broadly construe the definition of autodialer to avoid unwanted litigation and regulatory action.  This petition requests that the FCC clearly define what “capacity” means in relation to autodialers and suggests adding the words “without human intervention” to the definition.

The second petition requests that the new TCPA regulations only apply to “new” consumers.  Specifically, this petition is concerned with the fact that the new TCPA regulations will inhibit legitimate businesses, which have previously obtained telemarketing consent from consumers, from conducting future telemarketing operations.  The petition makes clear that the new TCPA regulations are inconsistent with the Federal Trade Commissions’ (“FTC”) Telemarketing Sales Rule, which the new congressionally-directed TCPA changes were meant to conform with.

If the TCPA regulations are amended to incorporate the issues addressed in these petitions, it will be to the benefit of telemarketers, who have been plagued by uncertainty and fear of class action litigation since the new TCPA regulations went into effect.

Public comments are due by December 2, 2013.  If you are interested in learning more about this topic or need to review your telemarketing practices, please e-mail us at, 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 obtaining 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.

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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