Plaintiffs’ attorneys often argue in Telephone Consumer Protection Act (“TCPA”) cases that the statute is “strict liability”, i.e. if you violate the law, you are subject to damages of $500 to $1,500 per call or text and it doesn’t matter if the violation was a mistake, intentional, or unknowing. Many of these same plaintiffs’ attorneys argue that the TCPA almost automatically results in class actions, so any size calling campaign would subject the caller to damages in the amount of thousands or millions of dollars, even if the violations were mistakes.Read More
Our attorneys at Copilevitz, Lam & Raney provide up-to-date insight into legal issues involving nonprofits, fundraising, telemarketing and political calling.
Although the United States lacks a comprehensive federal consumer privacy or data law, many states are passing their own restrictions containing restrictions similar to parts of the European Union’s General Data Protection Regulation (“GDPR”).Read More
Effective July 1, 2019, Virginia will ban caller ID spoofing, defined to include transmitting caller identification information that represents the call originates from a local number if the business does not conduct business from a location in Virginia (HB 2600).Read More
In a groundbreaking ruling, the Fourth Circuit unanimously struck down an exemption to the Telephone Consumer Protection Act (TCPA) as a violation of the Free Speech Clause of the First Amendment.Read More
I once read testimony from an “expert” hired by a plaintiffs’ firm in a TCPA class action who argued that literally anything is an automatic telephone dialing system (“ATDS”) as that term is defined in the TCPA and was interpreted by the FCC.Read More
Lead brokers have long been subject to telemarketing laws- a lead vendor could not knowingly sell leads to a calling company which is violating the Telemarketing Sales Rule (“TSR”), for example. This would cause the broker to be directly liable for the caller’s illegal actions under the TSR’s “accomplice liability” rules. But what they haven’t been subject to are the registration and license requirements found in more than half the states.
Vermont has changed that—and I expect more states to follow.Read More
Nonprofits are always looking for ways to increase donations to serve their charitable purposes. But what are the legal risks to the nonprofit if it moves its fundraising efforts in-house as opposed to continuing to outsource its fundraising to professional fundraisers?Read More
The Supreme Court will review a Fourth Circuit Court of Appeals decision to determine whether other judges must follow the Federal Communications Commission’s (“FCC”) interpretations of the Telephone Consumer Protection Act (“TCPA”), or if judges can interpret the meaning of the statute themselves without regard to what the FCC has said.Read More
Some companies market “ringless voicemail”, i.e. direct-to-voicemail messages without the phone actually ringing, as a way reach consumers without being subject to the Telephone Consumer Protection Act’s (TCPA) restrictions on calls to cell phones. They contend that the messages are not “calls” for the purposes of the TCPA.Read More
What they likely did not consider are other rules, which do not explicitly require a letter or communication to consumers, but which create a “back-door” disclosure requirement for almost all inbound and outbound telephone calls to California residents.Read More
Charitable organizations in the United States that allow access to their website by persons in Europe or collect data from European citizens, will find themselves potentially subject to GDPR.Read More
The Telephone Consumer Protection Act’s (“TCPA”) regulations require certain disclosures in prerecorded or artificial “voice” messages. Although this regulation was passed before the widespread use of text messages, it was uncertain until recently whether those disclosures applied to text messages, which arguably could be considered to be “artificial”.Read More
Telemarketing law compliance is not difficult if a business must consider only one jurisdiction’s laws. I could show your manager how to comply with the FTC’s Telemarketing Sales Rule (“TSR”) in an afternoon, for example, and recommend record-keeping and periodic auditing such that compliance and “safe harbor” protection would be almost certain in the case of an inquiry or lawsuit.Read More
It is no surprise that district courts have held that prescription reminder calls and texts are exempt from the prior express written consent requirement under the Telephone Consumer Protection Act (TCPA). These calls or texts are permitted if placed with the recipient’s prior express consent based on the TCPA’s exemption for “health care” messages as defined in the Health Insurance Portability and Accountability Act (HIPAA).Read More
As medical experts are bracing for one of the worst flu seasons in history, providers can rest assured that they can continue to remind patients via texts or phone calls to get their annual flu-shot as long as the patient previously gave their phone number to the provider.Read More
The Telephone Consumer Protection Act (“TCPA”) was designed by Congress to stop unsolicited telephone calls and faxes to consumers who did not want them. Akin to a trespassing statute, it allowed consumers to sue when they received unwanted contact via fax or telephone (and later text).
It was not intended to allow a “trespass” case when a host invited guests over to dinner, i.e. Congress did not intend to allow consumers and plaintiffs’ attorneys financial windfalls for invited communications.Read More
Class action lawsuits brought under the Telephone Consumer Protection Act (TCPA) can have serious financial consequences if the class is certified as damages can be up to $1,500 per call. For this reason, if a plaintiff wins a motion for class certification, the case will often settle as the defendant cannot risk a catastrophic financial reward. But occasionally, circumstances arise and the judge can reconsider certification as recently occurred in the Northern District of Illinois.Read More
On August 10, 2017, the U.S. Court of Appeals for the Eleventh Circuit held that the Telephone Consumer Protection Act (TCPA) “permits a consumer to partially revoke her consent to be called by means of an automatic telephone dialing system.” The judge reasoned that, “In law, as in life, consent need not be an all-or-nothing proposition.”Read More
On August 21, 2017, New York amended its telemarketing disclosure law to require prompt disclosure of whether the call is being recorded.
The law, which goes into effect immediately, applies to business to consumer sales calls.Read More
The Telephone Consumer Protection Act (TCPA) prohibits any person from making any call using an automatic telephone dialing system (ATDS) or prerecorded message to any cell phone number or other service for which the called party is charged without the prior express consent of the called party. 47 U.S.C. § 227(b)(1)(A)(iii). For this reason, companies are constantly seeking alternative ways to communicate with consumers.Read More