It's not news that in increasing numbers, consumers rely on their mobile devices for more and more information. Advertisers that are well aware of this trend have taken to promoting their products and services on wireless devices, much to the chagrin of wireless device owners, who often unwittingly pay for the delivery of those ads (based on the number of messages included in their packages), as well as other non-essential, non-emergency information they did not solicit. If you're in the business of telemarketing, it's critical to know and understand the most recent changes and refinements to the existing law.
The Telecommunications Consumer Protection Act (TCPA), legislation originally enacted in 1991 with the intent of protecting consumers by limiting contact from telemarketers, has been revised several times, most recently late last week. With the most recent revisions, the FCC took action to clarify a number of questions that had arisen regarding interpretations of TCPA -- and that spawned a cottage industry of class action attorneys who were only too happy to pursue those uninitiated or unsophisticated advertisers and others about the subtleties of TCPA (note that I left the word "unscrupulous" out. Hope springs eternal... let's assume they all have the purest of motives).
Far from acting randomly or without cause, the FCC, in 2014 alone, received more than 215,000 complaints from consumers about unwanted calls and texts. It takes a ton of time to review that many complaints on a single topic in a single year, so clearly the FCC recognized this as a problem that was not going away. The last version of TCPA included provisions that tackled some thorny issues associated with outbound wireline and wireless device contact. These provisions were, without question, imprecise. By taking this most recent action, the FCC hopes to clarify the obligations of those generating calls and texts. For the record, going forward, I use the words "call" and "text" interchangeably, since for purposes of the TCPA both are similarly viewed under the law.
Although the FCC is still vetting the final rules, its recently released fact sheet makes clear that commissioners and their staffs have heard the cries of not only consumers, but those in the business of communicating with individuals, by phone or text, with or without permission to do so. The FCC's action has been to clarify the rules, thus eliminating some of the legal hairsplitting (there are those who would argue that this is the purpose of law school, but I digress) that has enabled class action attorneys and plaintiffs who have suffered harm (along with those who love a good "get rich quick" scheme) to benefit from some vagaries in the law.
With this background in mind, here are the key provisions of this most recent action. Please note that some of the new clarification affects only wireless users, while others affects landline use as well.
There is no question that the current FCC has taken a strong stance against TCPA violations, even under the previous definitions. The recent decision of City Select Auto Sales, Inc. v. David/Randall Associates, Inc. et al serves as a point of caution. This case dealt with a Pennsylvania commercial roofing company that used a third party to fax ads to companies throughout the U.S. despite repeated consumer complaints. The company was hit with a (...wait for it...) fine of more than $22 million because it failed to meet several key elements of the TCPA's junk fax rules. What's even more shocking is that the amount awarded could have been higher if the junk fax recipients had asked for the allowable treble damages for repeated violations.
If you're concerned about your company being in compliance with the new rules, invest the time and money to know them. A business that relies on reaching potential and existing customers and clients using these technologies can't afford not to!
Editor's note: Since posting this article, the FCC has issued its final TCPA rules. You can find them here.
