With all of the recent litigation under the Telephone Consumer Protection Act ("TCPA"), marketers are well aware that making telemarketing calls can be a tricky road to navigate. In October 2013, the Federal Communication Commission's ("FCC") new TCPA rule went into effect, requiring prior express written consent to call consumers for telemarketing purposes— a higher standard than its previous "prior express consent" standard. As we have written previously, a large number of cases under the old rule grappled with the meaning of what constituted prior express consent. Although the rule itself has changed, the number of questions surrounding the rule has not.
The FCC intended the new rule to help achieve maximum consistency with the Federal Trade Commission's Telemarketing Sales Rule ("TSR"), but an area as highly litigated as the TCPA inevitably raises unique questions of how to interpret the law. Numerous petitions have been filed seeking clarity on a range of issues, including the meaning of "autodialer," whether marketers are liable for calls to reassigned numbers, and whether third-party intermediaries can obtain consent. As FCC Commissioner Michael O'Rielly explains, there is a need for the FCC to address these questions as soon as possible. Additional guidance from the FCC would allow businesses to clearly understand the legal standard and potentially avoid litigation.
While the FCC considers the pending petitions, it is business as usual for plaintiff's attorneys, with numerous lawsuits being filed every week. In an effort to keep marketers informed of recent TCPA filings, we have prepared an alert of select TCPA complaints filed throughout the country. These complaints are not comprehensive, but provide a pulse of the type of actions that plaintiffs are bringing under the TCPA. In addition to standard unsolicited text messages and phone calls, the complaints also show that if you thought the use of faxes is obsolete, think again. Faxes are widely used by commercial organizations and are subject to liability under the TCPA.
In addition, debt collection calls are frequently cited in the attached complaints, often in conjunction with the Fair Debt Collections Practices Act and state law. One misconception we hear about the TCPA is that the TCPA is unlikely to apply to debt collection calls because they are not telephone solicitations. The FCC has clearly specified that debt collection calls are not marketing calls subject to the "prior express written consent" standard as long as they do not contain marketing messages. However, debt collection calls require "prior express consent"—written or oral—when made to consumer cell phones using an automated dialing system or prerecorded or artificial voice. Thus, it is important to remember that the provision of the TCPA dealing with prerecorded calls to wireless devices applies to "any call." The only difference between pure debt collection calls and calls involving "telephone solicitations" is that consent to the latter must be in writing under the new FCC rule, whereas if it is a pure debt collection call consent can be in writing or oral.
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