TCPA Establishes New Requirements

On October 16, new requirements under the Telephone Consumer Protection Act (TCPA) will take effect. The TCPA, first enacted in 1991, prohibits companies from contacting consumers over their cell phones using automated dialing technology or pre-recorded/computerized messages. The new requirements will help protect customers from unwanted telemarketing and make the Federal Communication Commission’s rules consistent with the Federal Trade Commision’s analogous Telemarketing Sales Rule.

The new requirements will help protect customers from unwanted telemarketing.

Most of the changes have been made to already existing “consent regulations.” Now, the FCC will require prior written consent for auto-dialed messages or marketing calls/texts made to any cell phone or residential landline. Written consent will now require full disclosure on behalf of consumers that they will receive auto-dialed/pre-recorded calls or texts from a specific seller, and the consumer must acknowledge they have been informed of the consequences relating to consent and have agreed to receive such calls. In addition, companies cannot force consumers into consent by requiring consent as a prerequisite to purchasing any goods or services. The FCC will not be offering a “grandfathering” option, so companies may have to gain newly written consent from existing users or subscribers even if they have previously expressed consent.

Recently, numerous class action suits have been filed over violations of the TCPA. Earlier this year, a class action suit filed against DirecTV alleged that the company contacted consumers’ cell phones and used pre-recorded messages to offer their satellite television services. When Bank of America faced six class actions over similar allegations earlier this year, they proposed a $32 million settlement to resolve the suits. The TCPA currently allows damages of $500 and $1,500 per negligent or willful violation of the act, respectively.

The newly enacted regulations, in placing a far greater burden on companies and requiring much more specific wording, are designed to protect users’ privacy. Considering the already high number of TCPA cases filed annually, it seems likely that courts will soon find themselves bombarded with a greater number of cases than ever before as companies adjust to the new requirements.