Roth Jackson | Legal Services - Richmond VA & McLean VARoth Jackson | Legal Services - Richmond VA & McLean VA
  • Home
  • Our Team
    • Richmond Office
      • E.G. Allen, III
      • Joseph P. Bowser
      • caroline e. browder
      • andrew m. condlin
      • sean m. gibbons
      • kim m. lacy
      • jennifer d. mullen
      • allyson martin sladic
      • C. Taylor Smith
      • Jennifer L. West
    • Tysons Office
      • genevieve c. bradley
      • Joseph P. Bowser
      • joseph f. jackson
      • ashley b. kyle
      • mitchell n. roth
      • Jennifer S. Varughese
  • What We Do
    • banking & finance
    • bankruptcy & creditor rights
    • commercial litigation
    • commercial real estate
    • corporate
    • direct marketing & regulatory compliance
    • employment & labor law
    • Immigration
    • land use & zoning
    • privacy and data security practice group
  • News & Insights
    • TCPA
    • Immigration News
    • Employment & Labor Law News
  • Community Outreach
  • Contact Us

A Brief Intro to the TCPA

October 13, 2020abartley-yates@rothjackson.comRecent News, TCPA

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.

Recent Posts

  • Phone Hacked at Local Immigration Court
  • Important Reminder for Missing / Delayed RFEs
  • Uncertainty Surrounding Personal Jurisdiction and Purposeful Availment in TCPA cases post-Hood
  • Reminder for Employers with 100+ Employees, OSHA’s Vaccine/Weekly Testing Mandate Becomes Effective January 10, 2022

Subscribe to our mailing list

* indicates required
Categories

Archives

  • August 2022
  • May 2022
  • January 2022
  • December 2021
  • November 2021
  • September 2021
  • August 2021
  • June 2021
  • May 2021
  • April 2021
  • March 2021
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • January 2020
  • June 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
Awarded in 2016, 2018, and 2019

find us at

Facebook
LinkedIn

Richmond

1519 Summit Avenue
Suite 102
Richmond, VA 23230

(804) 441-8440
(804) 441-8438

Tysons Corner

8200 Greensboro Drive
Suite 820
McLean, VA 22102

(703) 485-3535
(703) 485-3525

  • Home
  • Our Team
    • Richmond Office
      • E.G. Allen, III
      • Joseph P. Bowser
      • caroline e. browder
      • andrew m. condlin
      • sean m. gibbons
      • kim m. lacy
      • jennifer d. mullen
      • allyson martin sladic
      • C. Taylor Smith
      • Jennifer L. West
    • Tysons Office
      • genevieve c. bradley
      • Joseph P. Bowser
      • joseph f. jackson
      • ashley b. kyle
      • mitchell n. roth
      • Jennifer S. Varughese
  • What We Do
    • banking & finance
    • bankruptcy & creditor rights
    • commercial litigation
    • commercial real estate
    • corporate
    • direct marketing & regulatory compliance
    • employment & labor law
    • Immigration
    • land use & zoning
    • privacy and data security practice group
  • News & Insights
    • TCPA
    • Immigration News
    • Employment & Labor Law News
  • Community Outreach
  • Contact Us
© 2018 Roth Jackson Gibbons Condlin, PLCFreshySites
Terms and Conditions
ATTORNEY ADVERTISING: Case results depend upon a variety of factors unique to each case.
Case results do not guarantee or predict a similar result in any future case.