In the last several months, nearly every aspect of the economy has experienced significant upheaval. The marketing industry has been no exception. Recent developments have led to substantial changes to what is considered Telephone Consumer Protection Act ("TCPA") compliance. As a result, it is important to take stock of certain elemental TCPA guidance tips to stay up to date with the present state of the law.
What is the current TCPA guidance based on recent legal developments?
The first of the new developments saw the Federal Communications Commission ("FCC") issue a ruling which clarified that peer-to-peer messaging platforms requiring senders to manually send SMS text messages one at a time do not constitute automatic telephone dialing systems ("ATDS") for TCPA purposes. The ruling was further buttressed by the fact that these platforms allow senders to create the content of their own messages. Guidance from the FCC on this issue was welcome given the growing popularity of such messaging technology. As a result, marketers that make use of such platforms should review software capabilities to ensure that they provide for a sufficient amount of human involvement in transmitting messages in order to comply with FCC guidance.
Soon thereafter, the United States Supreme Court ("SCOTUS") took a scalpel to the TCPA by striking its exception for calls placed solely for purposes of collecting a debt owed to or guaranteed by the government. Given the number of loans issued or guaranteed by the federal government, in striking the exception, SCOTUS significantly expanded the scope of the TCPA's robocalling prohibitions. Consequently, marketers that either place such calls or generate leads for such calls, are well-advised to reexamine their consent procurement procedures to ensure that calls to federal loan debtors do not run afoul of TCPA requirements.
Most recently, SCOTUS has agreed to hear a Facebook petition to provide definitive guidance as to the proper interpretation of the term automatic telephone dialing system for TCPA purposes. Following the D.C. Circuit's decision in ACA International, a hodgepodge of case law has developed across the country concerning what technology is and is not an ATDS within the meaning of the statute. This has made compliance from one jurisdiction to another difficult for telemarketers that operate nationwide. The fact that a definitive ruling from the country's high court is on the horizon promises to bring clarity that the industry has been waiting on for years.
Using TCPA Guidance to Keep Compliant
Recent months have reinforced the fact that TCPA regulations continue to evolve in order to keep pace with technological advances. The consequences of a business's failure to remain compliant with these rules include crippling liability in the form of regulatory penalties, as well as consumer class action lawsuits where statutory damages range from $500 to $1,500 per phone call or text message. As such, working with knowledgeable marketing counsel to regularly review internal practices and procedures is an absolute must in this rapidly evolving regulatory climate.
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Originally published by Klein Moynihan, July 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
