This article offers a brief introduction to the Telephone Consumer Protection Act¹ and the Federal Communications Commission’s implementing regulations², which I’ll refer to collectively here as the “TCPA.”³ Among other things, the TCPA regulates calls or messages delivered with what Congress called an “automatic telephone dialing system” (“ATDS”).
But first, some background: Congress passed the TCPA in 1991 because no one liked being interrupted at dinner with autodialed calls. The TCPA doesn’t mention text messages (probably because text message service wasn’t generally available until 1993), but the FCC and the courts have done Congress a solid by interpreting “call” (which is in the law) to also mean “text messages” (which, as any teenager will tell you, is most certainly not synonymous). (It also regulates faxes, which, yes, are still a thing, particularly for certain industries like health care and pharma.)
Why should you care? Well, TCPA lawsuits are the second most common type of lawsuit filed in federal court for several years running. Thousands of TCPA cases are filed in federal court each year; more than half are individual claims, but a healthy percentage are class action cases, which can be bet-the-company type stuff.
Plaintiff’s lawyers love the TCPA: no one got hurt, so no medical experts and complicated epidemiological proof are required about that factory leak or iffy pharmaceutical product from umpteen years ago. And to encourage plaintiffs to file TCPA cases, Congress authorized the courts to award statutory damages of $500 per call, text, or fax, which the court can triple if the conduct was intentional. Exposure in TCPA class actions quickly escalates to a case worth many zeros. Dish Network, for example, was hit with a $280 Million dollar TCPA judgment in 2018 for calls made by its marketing agents. Most of those cases settle, of course, and the filed cases are the tip of the proverbial iceberg: for every filed lawsuit, I see about 5 demand letters that lead to out-of-court settlements; there are even apps and websites that allow consumers to pop in some basic information and it spits out a TCPA demand letter for them. There are “professional plaintiffs” whose sole job is to maintain a bank of phones, log incoming “unwanted” calls, then make TCPA claims based on those “unwanted” calls.
In addition to the private plaintiffs wanting to get paid, the FCC and FTC (Federal Trade Commission) both have authority to implement the TCPA. For example, the FTC handles the National Do Not Call Registry and pursues enforcement actions against VoIP providers, while the FCC issues most of the TCPA regulations and regulatory decisions and has enforcement authority over common carriers like CLECs and wireless providers. Congress gave them their own enforcement authority, which was just amped up with the TRACED Act in late 2019. So-called “robocall” complaints (an inartful term that too often lumps together legal and illegal calls) are consistently among these agencies’ top consumer complaints, and thus high on their priority lists.
And, more recently, the FCC has authorized a group called the Industry Traceback Group (“ITG”), housed in the USTelecom’s trade association, to investigate the sources of reported illegal calls. The concept is to find the origin of a given call and ascertain its lawfulness, an inquiry carriers and VoIP providers rarely, if ever, had to engage in before. In practice, many providers have experienced reflexive demands to shut off a given carrier customer or end user before the investigation is even complete. The goal of stamping out illegal robocalls is noble indeed, but in practice this non-governmental body urging or essentially directing providers to terminate agreements or customers presents significant challenges for those carriers and providers facing these requests.
In short, then, TCPA issues could arise in any number of ways: a direct claim or lawsuit, a subpoena or government agency Civil Investigative Demand for information relating to one your customer is facing, or an ITG Traceback request relating to suspected unlawful activity.
¹ 47 U.S.C. § 227.
² 47 C.F.R. § 64.1200.
³ A brief note on the author, and the obligatory disclaimers: I am an attorney who practices in the TCPA, communications, and marketing law arenas. I represent numerous voice, software, and text message service providers, as well as various brands and lead-generation companies that rely on those types services to engage in lawful communications campaigns. For over 15 years my practice has focused in the telecommunications, VoIP, SMS, and consumer-protection and marketing-law sectors. I am lead defense counsel in various individual and putative-class TCPA cases around the country, and advise various companies on, among other issues, TCPA compliance issues.
This discussion concerns a legal topic, but it is not legal advice. It is for introductory, informational purposes only. As this brief article hopefully illustrates, the facts matter, as does the specific venue where a dispute arises. Context is key, so competent counsel should be consulted before taking action that implicates the TCPA.
