The Telephone Consumer Protection Act (“TCPA”) prohibits the use of an autodialer or prerecorded voice when placing certain calls to consumers’ cellphones without their prior express consent. Recently, the Ninth Circuit clarified that the TCPA prohibits companies from placing all such non-emergency calls to consumers’ cellphones, without prior express consent, and not just those placed for advertising or telemarketing reasons. In a case captioned Loyhayem v. Fraser Financial and Insurance Services, the Court held that the TCPA’s ban on using an autodialer or prerecorded voice applies to job robocalls as much as it does to sales calls.
How does the Loyhayem decision on job robocalls affect how courts interpret the TCPA?
Loyhayem received an unwanted “job recruitment” call to his cellphone from Fraser Financial. He sued Fraser Financial, alleging violations of the TCPA’s ban on using an autodialer or prerecorded voice when calling a consumer’s cellphone without prior express consent. Fraser Financial moved to dismiss, arguing that the TCPA bans applied only to advertising and telemarketing calls. The district court agreed and dismissed the case.
On appeal, the Ninth Circuit overturned the dismissal, holding that the lower court had misinterpreted the pertinent TCPA regulations. Specifically, the Court explained that section (a)(1) of the TCPA implementing regulations establishes that the TCPA’s autodialer and prerecorded voice bans apply to all non-emergency calls to cellphones where the consumer did not provide prior express consent. It went on to explain that section (a)(2) does not narrow that application of these TCPA prohibitions; rather, that provision creates a heightened consent standard for advertising and telemarketing calls to cellphones: prior express written consent. As such, the Court held that the TCPA does apply to Fraser Financial’s job robocalls, requiring it to obtain prior express written consent from the consumer before placing those calls.
Why does the Loyhayem decision matter to your business?
Businesses place calls (or send text messages) to consumers for a variety of reasons. Some businesses do not place any advertising or telemarketing calls; others only place advertising or telemarketing calls; and still others fall somewhere in between. What the Loyhayem decision makes clear is that a business must know the reason for which it places calls and must obtain the correct type of consent from consumers prior to placing calls.
This mixed reality can make for a confusing patchwork of which level of consent is required for placing certain calls or sending certain text messages. This begs the question: How will a court view calls that combine something like job recruitment with advertising to sign up for a job website? It seems that taking a more conservative approach is the safest option. Obtaining prior express written consent from the consumer before placing any call or sending any text message, regardless of content or purpose, is a good first step towards keeping your business TCPA compliant.
Hire experienced TCPA attorneys.
Are your calls or text messages advertisements? Are they more akin to job recruitment messages? Do you have the right type of consent? The Loyhayem decision once again underscores the ever-changing nature of the TCPA landscape. Keeping track of developments in the law, both subtle and substantial, can be a full-time job in and of itself. However, there is a solution that will help you avoid spending the precious resource of employee time on staying up to date with the TCPA: hire experienced TCPA attorneys.
The attorneys at Klein Moynihan Turco have years of experience in all aspects of telemarketing law. We can help your business update your telemarketing policies to remain TCPA compliant even as the law evolves on a near-daily basis. We can also provide experienced, knowledgeable representation in defending your business in TCPA litigation proceedings. In short, we worry about the TCPA so that your business does not have to.
If you need assistance with updating your telemarketing practices and procedures or defending against a TCPA lawsuit, 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.
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