Recent TCPA Case Is a Cautionary Tale for Telemarketers

TelecommunicationsThe Telephone Consumer Protection Act (TCPA), which allows individuals to file lawsuits and collect damages for receiving certain unsolicited commercial text messages, faxes, pre-recorded calls or autodialed calls, has made headlines again.  The Federal Court for the Western District of Wisconsin recently ruled that a defendant may be held liable for violating the TCPA, even if the call was dialed by a live person, so long as the telephone had the capacity to make an autodialed call.

Wisconsin TCPA Case

In Nelson v. Santander Consumer USA, the plaintiff alleged that the defendant, an automobile refinancing company, called her cell phone more than 1,000 times and left over 100 pre-recorded messages over the course of a year using an autodialer, in an attempt to collect an outstanding debt on two vehicles.  The Court granted the plaintiff’s summary judgment motion, finding that the defendant violated the TCPA and awarding the plaintiff $571,000.

This would seem like a common fact pattern, except for the fact that it was never proven that the defendant called the plaintiff using autodialer technology.  The judge found that it was sufficient that the telephone equipment used by the defendant had the capacity to produce, store and call telephone numbers.  Specifically, the Court found that:

[i]n making these calls, defendant used the Aspect telephony system, a computer telephone software system that routes and places inbound and outbound calls. Aspect has the capacity to (1) store telephone numbers and then call them; and (2) perform “predictive dialing” and “preview dialing.”

In predictive dialing, the system times the dialing of numbers using an algorithm to predict when an agent will become available to receive the next call. To facilitate that method of dialing, defendant created lists of customer telephone numbers to be called on a particular day. In preview dialing, an employee chooses a telephone number by clicking on a computer screen and the system calls it (emphasis added).

The defendant asserted that the calls to the plaintiff were made by a live person using the preview dialing function of the Aspect telephony system, which it claimed are not autodialed calls within the meaning of the TCPA.  The Court disagreed, relying on the FCC’s expansive interpretation of the term “automatic telephone dialing system” in finding that “the question is not how the defendant made a particular call, but whether the system it used had the ‘capacity’ to make the automated call.”  For defendant’s multiple violations of the TCPA, the judge awarded the plaintiff $571,000 in remedial damages.

Wisconsin TCPA Case Takeaway

While the Court’s ruling regarding autodialed calls and the large award of remedial damages is somewhat jarring, it is not inconsistent with the TCPA advisory report and commentary issued by the FCC.  As we discussed in our TCPA white paper, “[t]he autodialed call definition should be broadly construed in an effort to avoid unwanted litigation and regulatory action.  For instance, if you are utilizing any type of call center software as part of your telemarketing operations, you may be using an autodialer within the FCC’s definition.”  Despite the fact that this is the first case in which a court has explicitly ruled that a potentially live dialed call falls within the scope of the TCPA, it is not as surprising as some legal commentators have described.

How to Protect Your Business

If a dispute in which consumer consent was not obtained under the TCPA arises, the marketer bears the burden of proof to demonstrate that the calls were made by a live person using telephones that do not have the capacity to make autodialed calls.  If the marketer cannot prove this, it must show that a clear and conspicuous disclosure was provided to the consumer and that the consumer unambiguously consented to receive robocalls or text messages (as applicable) to the number he/she specifically provided.

It is a best practice for marketers to get in the practice of collecting written consent from consumers as soon as possible.  Not only will businesses be required to do so beginning in October, but having written consent provides a tangible and strong defense that adequate consumer consent was obtained. Furthermore, it is recommended that records of each consumer’s consent be maintained for at least four (4) years, which is the default federal statute of limitations to bring an action under the TCPA.  For examples of acceptable evidence of consent, please see our previous post.

TCPA Penalties

The TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per violation.   In determining the final amount of statutory damages to award, courts analyze whether the defendant “willfully” or “knowingly” violated the TCPA.  Considering that telemarketing and text message campaigns often involve thousands and, in some cases, millions, of calls/text messages, potential penalties sought by the FCC under the TCPA may escalate very quickly.  Moreover, companies that fail to comply with the TCPA may find themselves facing consumer class action litigation.  If you find yourself facing a TCPA investigation or class action litigation, you should be sure to take the appropriate steps and contact experienced counsel.

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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