Search results for: tcpa

The Telephone Consumer Protection Act (the TCPA) restricts telemarketing and the use of automated telephone equipment for phone calls, faxes, and text messages. The TCPA provides a private right of action and significant statutory penalties, and therefore is an area of significant risk for any company that communicates with its customers, particularly by phone or text. In an effort to ease restrictions in light of the COVID-19 outbreak, the Federal Communications Commission (FCC) has issued guidance clarifying that informational calls that are directly related to the imminent health or safety risk arising out of the COVID-19 outbreak and made by certain types of callers are exempt from the TCPA requirements under the “emergency purposes exception.”

Under the TCPA, telemarketers are required to obtain prior express written consent before making calls to landline or wireless phones with prerecorded telemarketing messages and before using an automatic telephone dialing system (ATDS) to call or text any wireless phones with telemarketing messages.

Notably, the TCPA expressly excludes calls made for “emergency purposes,” from the Act, including “calls made necessary in any situation affecting the health and safety of consumers.” This exception is intended for situations posing “significant risks to public health and safety” where the use of such calls could “speed the dissemination of information regarding” such risks or conditions.Continue Reading FCC issues guidance on the TCPA’s “emergency purposes exception” based on the COVID-19 pandemic

A federal court in Missouri recently held that a restaurant’s promotional text messages did not violate the Telephone Consumer Protection Act (TCPA) because the messaging equipment used by the restaurant did not qualify as an automatic telephone dialing system (ATDS) as defined by the statute. The district court noted a split between the circuit courts …

In a watershed ruling for businesses facing the recent onslaught of Telephone Consumer Protection Act (TCPA) claims, the Second Circuit Court of Appeals held that consumers cannot revoke their consent to receive automated or prerecorded cell phone calls if they previously consented to receive those calls as part of a binding contract. See Reyes v. Lincoln Automotive Fin. Servs., No. 16-2104-cv, slip op. (2d Cir. June 22, 2017).

In Reyes, the plaintiff entered into a binding auto lease agreement, which contained a provision stating that he expressly consented to be contacted using “prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems” at the cell phone number he had provided on his application.  When the plaintiff defaulted on his car lease and he started receiving collection calls on his cell phone, he allegedly mailed a letter revoking his consent to receive further calls, but they continued.

The New York federal district court granted summary judgment to the defendant in part on the basis that “the TCPA does not permit a party to a legally binding contract to unilaterally revoke bargained-for consent to be contacted by telephone.” On appeal, the Second Circuit affirmed the district court’s decision, holding that “the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent, and we decline to read such a provision into the act.”Continue Reading Second Circuit Provides Businesses with a Powerful Defense to TCPA Revocation Claims

Last week, the FCC’s Enforcement Bureau issued an enforcement advisory reiterating its position that autodialed text messages must comply with requirements set forth in the Telephone Consumer Protection Act (TCPA).  Though it is unclear what prompted this specific advisory (perhaps, the upcoming holiday season), the Enforcement Bureau issued the warning in order to promote understanding…

Lyft, Inc. – the popular ride hailing service featuring the iconic pink moustache – is facing a second class action lawsuit in California alleging violations under the Telephone Consumer Protection Act (“TCPA”).

This alleges that Lyft sent unwanted and unsolicited text messages to cellphones using an automated dialing system without first obtaining express written consent…

The Telephone Consumer Protection Act (“TCPA”) applies in many circumstances when companies use an automatic telephone dialing system (or “autodialer”) and/or pre-recorded messages to call consumers. In those situations where the TCPA does apply, the company cannot make the call unless it is an “emergency,” or unless the company has the prior express consent of the called party.  The Federal Communications Commission (“FCC”) has the power to exempt certain categories of calls from the TCPA’s requirements.

The TCPA is vigorously enforced by the FCC and has also been the source of extensive class action litigation, including suits against utilities. Any violation of the TCPA can subject the calling company to statutory damages of $500 to $1,500 per call.  Those statutory damages can quickly add up to millions or tens of millions of dollars in liability.  Given this regulatory framework and potential liability, entities have petitioned the FCC for clarification regarding definitions in the TCPA and the application of the law to certain types of telephone communications.

The Edison Electric Institute and American Gas Association recently filed a petition with the FCC (the “EEI/AGA Petition”), seeking confirmation that “under the TCPA, providing a wireless telephone number to an energy utility constitutes ‘prior express consent’ to receive, at that number, non-telemarketing, informational calls related to the customer’s utility service, which are placed using an autodialer or an artificial or prerecorded voice.” The FCC has previously found that a consumer providing his or her telephone number signifies prior express consent to be called on that number for purposes that relate to the reason the number was provided.  For example, providing a phone number on a credit application signifies prior express consent to be called on that number for purposes related to that credit account.  The EEI/AGA sought clarification that such guidance applied in the context of providing telephone numbers to utility companies.

In a declaratory ruling released August 4, 2016, the FCC granted the EEI/AGA Petition. The FCC found that:  “in the absence of facts supporting a contrary finding, prior to the termination of a customer’s utility service, a customer who provided a wireless telephone number when he or she initially signed up to receive utility service, subsequently supplied the wireless telephone number, or later updated his or her contact information, is deemed to have given prior express consent to be contacted by their utility company for calls that are closely related to the service[.]”Continue Reading The FCC Clarifies Prior Express Consent Under the TCPA for Calls to Utility Company Customers

TCPA class actions continue to plague companies around the country, but a recent FCC ruling means that one big caller doesn’t have to worry: the federal government, as well as its contractors.

On July 5, the Federal Communications Commission (FCC) issued a declaratory ruling that broadly exempted the federal government and its contractors from the requirements of the Telephone Consumer Protection Act, which include obtaining prior express consent before making most calls to mobile phones.
Continue Reading Federal Government and Its Contractors Exempt from the TCPA, FCC Rules

In an instructive opinion on how intangible harms can cause injuries sufficient to confer standing on plaintiffs—and a rare example of the U.S. Supreme Court’s latest ruling on standing aiding plaintiffs—a West Virginia federal court ruled June 30 that computer-dialed telemarketing calls caused concrete, particularized privacy invasions such that plaintiff’s Telephone Consumer Protection Act (“TCPA”) putative class action claim could move forward.

The ruling in Mey v. Got Warranty, Inc., et al., No. 5:15-cv-00101 (N.D. W.Va. June 30, 2016) provides a contrast to the growing number of dismissals issued by courts across the country finding that, after the U.S. Supreme Court’s opinion in Spokeo v. Robins, 136 S. Ct. 1540 (2016), plaintiffs in various cases failed to allege concrete, particularized injuries sufficient for Article III standing.1   Because of this, it may provide guidance for plaintiffs—particularly in the area of technology-related statutes and data breaches, where standing is often an issue—on how to avoid summary dismissal of their claims.  Given the court’s detailed opinion, the import of the holding may extend well beyond the context of the case, in which plaintiff alleged she received numerous robocalls in violation of TCPA provisions barring autodialed, prerecorded messages and calls to those on the National Do Not Call Registry.Continue Reading Federal Court Finds Intangible Harm Caused by Robocalls Sufficient for Post-Spokeo Standing in TCPA Claim Alleging Privacy Invasion