Attorney Brendan Sweeney featured in the June edition of the Broward County Bar Barrister

The Telephone Consumer Protection Act: A Powerful Consumer Protection Statute Lurking in the Shadows of Mobile Marketing

Imagine for a moment that a long-term client calls her attorney to discuss some items, and, in passing, the client ad-vises her attorney that she really has been bringing in new customers lately. The attorney congratulates her, and asks how she is drumming up so much new business? The client in turn advises the attorney that she is using cutting edge mobile marketing activities that are regularly sending promotional text messages to current and potential clients. The client asks the attorney if there are any legal issues with this type of marketing, and the attorney responds no. The cli-ent then tells the attorney that her telephone number won’t stop ringing with new prospective clients. The attorney hangs up the phone and then continues with the day.

Well, the attorney in this scenario better call that client back and advise her of the implications of a very strong consumer protection statute– the Telephone Consumer Protection Statute. In 1991, Congress passed the act, codified at 47 U.S.C. § 227, to address “[v]oluminous consumer complaints about abuses of telephone technology—for example, computerized calls dispatched to private homes.” Congress later amended the act via the Junk Fax Protection Act of 2005 and the Truth in Caller ID Act of 2009. However, for the most part, the original statute has not been amended.

The act regulates calls or transmissions made using an automatic telephone dialing system, as well as certain artificial or prerecorded voice calls. Unless a recipient has given prior written consent for telemarketing calls or provided the recipient’s number to a creditor, the call-er may not:

• Make pre-recorded voice calls or calls via an automatic telephone dialing system to a recipient’s cell phone or other mobile device. The act defines ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C § 227(a)(1);
• Send text messages from an automatic telephone dialing system;
• Make pre-recorded voice calls that are non-emergency to a recipient’s residential phone line; or
• Send faxes for the collection of a debt.In addition, a recipient has the right to revoke consent.

If a company violates the act, the recipient can file a private lawsuit against the company and seek: (i) injunctive relief; and (ii) the greater of actual damages or $500 for each violation of the Act. 47 U.S.C. § 227(b)(3).

Additionally, the act provides that a court, “in its discretion,” may award treble damages if the defendant “willfully or knowingly” violated the statute. What constitutes a “willful and knowing” violation of the TCPA depends on the court in which the action is filed. Notably, some courts hold that a defendant must know that its actions violate the act, while other courts require only that a plaintiff show the defendant willfully or knowingly sent the unsolicited fax or made the prerecorded call. Common defenses to claims usually concern whether express consent was provided, whether the consumer has an arbitration agreement, and whether the technology utilized in contacting the consumers is considered an automatic telephone dialing system.

The amount of claims filed throughout the country has been steadily increasing in recent years. Consumer attorneys will often file a class action lawsuit based upon minor violations of the act in efforts to increase the value of their claims. The case law interpreting the act is always evolving due to the changing technological landscape. Attorneys need to be aware of the basic principles of the act and the potential implications of mobile marketing activities.

See page 16 for original article – https://www.browardbar.org/wp-content/uploads/barrister/2019/june/BarristerJune19.pdf