Lawsuits- class actions in particular- alleging violations of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (“TCPA”) are on the rise. The Federal Communications Commission (“FCC”) has also been actively engaged in TCPA enforcement, and just last month released a Declaratory Ruling clarifying that sellers may be held vicariously liable for TCPA violations by third party telemarketers acting on their behalf. This landscape makes it increasingly important for companies to review their practices to ensure that they comply with applicable laws.
Among other things, the TCPA generally prohibits:
- Using artificial or pre-recorded voice messages to make calls to residential lines and cellular phones without prior express consent;
- Using autodialers to call cellular phones and send text messages;
- Making calls to numbers registered on the national Do-Not-Call Registry; and
- Sending unsolicited ads via fax without prior express consent (or an established business relationship) and an opt-out mechanism.
Last year, the FCC revised its rules to require, among other things:
- Prior written consent for autodialed or prerecorded telemarketing calls to wireless and wireline numbers; and
- An automated opt-out mechanism.
TCPA violations can result in fines of $500 to $1,500 per violation, which can have a severe financial impact on companies that engage in large-scale marketing campaigns that do not comply.
The bottom line: Companies that engage in marketing campaigns via phone, text, and fax should carefully review their policies and practices to ensure that they comply with applicable laws. Companies that engage third parties to perform these services on their behalf should also perform due diligence on their vendors and incorporate relevant provisions into their contracts.