Consent Language—It Is Easy, But It Needs To Be Perfect

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.

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Vermont Passes First in Nation Data Broker License Requirement

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.

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Supreme Court Agrees to Hear TCPA Case on Binding Effect of FCC Rulings

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.

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Court holds “ringless voicemail” messages are subject to TCPA restrictions

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. 

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California Privacy Law Creates “Back-Door” Disclosure Requirement

When the California Privacy Law was signed into law on June 28, many businesses began preparing letters, website modifications, privacy policy modifications, and other changes the law requires anticipating the January 1, 2020 implementation date.

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.

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Court Rules TCPA Disclosures Are Not Required in Texts

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”.

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Can States Tax Telemarketing Transactions? Supreme Court May Overturn Important Sales/Use Tax Case

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.

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Court expands TCPA “emergency purposes” exemption to include prescription reminder calls and texts

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).

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Court Rules Plaintiff in “Trap” Text Case has No TCPA Claim

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.

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Federal court decertifies TCPA class action based on D.C. Circuit ruling

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.

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Eleventh Circuit Rules TCPA Consent Can Be Partially Revoked

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.”

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Are “ringless voicemail” calls exempt from the TCPA?

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. 

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