New Rules Impacting Telephone Consumer Protection Act

The new rules applicable to the Telephone Consumer Protection Act became effective on October 16, 2013.  These rules may affect your company’s marketing business, and failure to comply with the rules could subject your company to legal action, including without limitation a class action lawsuit or a regulatory investigation.

About the Telephone Consumer Protection Act (TCPA)

The TCPA is a federal statute that was enacted in 1991.  It allows individuals to file lawsuits and collect damages against telemarketers for unsolicited residential and cellular calls, text messages, and faxes.  Congress authorized the Federal Communications Commission (FCC) to pass rules and regulations with which telemarketers must comply in order to avoid liability under the TCPA.

About the FCC’s New Rules, Effective October 16, 2013

Last year, the FCC approved new rules that will provide additional protections for consumers against unsolicited calls, messages, and faxes.  Those rules became effective on October 16, 2013. Among other things, the new rules require telemarketers to obtain prior express written consent from consumers before calling consumers’ residences and cell phones using automatic telephone dialing systems or prerecorded voice messages.  Telemarketers must obtain consumers’ consent pursuant to a clear and conspicuous disclosure that details the nature of the marketing call and specifically identifies the seller.  Additionally, the new rules eliminate the “established business relationship” exemption that, in the past, allowed telemarketers to bypass the consent requirement if they had already done business with a consumer.

Penalties for Violating the TCPA

The TCPA is essentially a strict liability statute.  It provides for actual or statutory damages ranging from $500 to $1,500 for each violation.  Importantly, courts have consistently authorized class action lawsuits under the TCPA.  Telemarketers should accordingly strive for strict compliance with the TCPA and its applicable rules and regulations to avoid unwanted litigation.

If your company has questions about the TCPA or how to comply with the FCC’s new rules and regulations, we recommend that you consult with an attorney of your choice who is knowledgeable in the area of telemarketing law.

For more information contact Bentley J. Tolk or Thomas E. Goodwin.