TCPA: Caught in the Gap – Jennie Faker and Michael Hanley

The Telephone Consumer Protection Act (TCPA) was signed into law in 1991, well over twenty years ago. The Act aimed to stop harassing and unwanted telemarketing phone calls to consumers. These calls, made by advertisers offering products/services to consumers, were often “robocalls”, which use an “autodialer” system to deliver a pre-recorded telemarketing message[1].

Why So Many Lawsuits?

Since 1991, the TCPA has been revised and expanded by Congress and the FCC, resulting in an increasing number of lawsuits from marketers. Just since 2012, lawsuits have increased by 63 percent. This has happened for several reasons: modern technology, especially mobile devices, allow companies to reach a larger number of consumers in a shorter amount of time; no limits on damages combined with litigation that is often unchecked by any application of the statutory language to modern technology; and the lack of an updated regulatory interpretation of the language are all reasons for an increase in litigation[2]. Especially with the development of the smartphone and mobile email, the chances for a marketer to unintentionally break the rules have become increasingly easier.

The New TCPA Rules

The latest TCPA rules were approved on February 5, 2012 and went into effect October 16, 2013. These new rules include the need for marketers to gain prior express written consent from consumers before calling or texting marketing information or offers and deletes the exemptions for marketers that have prior established business relationship[3]. The prior written consent rule means that unambiguous written consent is required from consumers before telemarketing calls or text messages, with the exception of calls that are manually dialed and do not contain a pre-recorded message, which are exempt from the revised TCPA. In the “no established business relationship” exemption rule, an established business relationship no longer relieves advertisers of prior unambiguous written consent requirements.

What Happens Now?

The FCC has the authority to interpret the TCPA and clarify its own rules without Congress. It has shown a willingness to act quickly when presented with an urgent matter, as after the Petition for Declaratory Ruling was filed. With the new TCPA rules, the FCC will need to resolve the question of capacity and the definition of autodialer, which are currently pending public notices[4]. The clarification will potentially decrease the amount of litigation, help the consumers get the kind of communication they expect and ease the businesses decision to act without the fear of litigation.

[1] (Klein & Turco, 2013)

[2] (Desai, King, Wolvin, & Martin, 2013)

[3] (Klein & Turco, 2013)

[4] (Desai, King, Wolvin, & Martin, 2013)