Don’t Let Automatic Calls to Consumers Cost You, Rather than Help You – A TCPA Update

Earlier this month, the United States Supreme Court confirmed the broad reach of the Telephone Consumer Protection Act (TCPA) to prohibit unsolicited automated calls or “robocalls” to cell phones. In Barr v. American Association of Political Consultants, Inc., the Court struck down an exception that allowed the federal government to make robocalls to cell phones when collecting its own debts. While Barr may not change the TCPA landscape for private businesses (unless they were collecting federally-backed loans), the decision is a good reminder to review the TCPA’s constraints on calls to cell phones.

First, why should a business care?

The TCPA provides a private right of action to a consumer who receives an unsolicited robocall—or text; more on that in a moment—with a statutory penalty of $500 per call, which can be trebled for a knowing or willful violation. Most TCPA lawsuits are brought as class actions, so total exposure can easily be in the millions, if not tens of millions.

Also, liability can arise from “any call” or text, not just marketing or debt collection calls. If your business automatically sends text notifications—say, appointment reminders or your own advertisements, you need to be aware of the TCPA’s constraints.

Now, what does a business need to know when making robocalls or automatic texts to cell phones?

The text of the pertinent TCPA provision states:

It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice– . . .

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States . . . .

47 U.S.C. § 227(b)(1)(A)(iii).

In practice, this generally means:

• Voice calls and text messages are covered.  Although texts were not in use in 1991 when the TCPA was enacted, the Federal Communications Commission in 2003 interpreted “any call” to include texts, and courts have followed this agency interpretation;
• An “automatic telephone dialing system” (ATDS) includes any technology that has the “capacity to store and produce numbers to be called, using a random or sequential number generator; and to dial such numbers.”  Note that because the definition includes the word “capacity,” it’s an ATDS if it could do those things, not if it does do those things in making a particular call;
• “[E]xpress consent” is an exception to these constraints.  Obtain permission and you should be free to call or text . . . subject, of course, to additional constraints in other consumer protection statutes, such as the federal Fair Debt Collection Practices Act and similar state acts, e.g., the West Virginia Consumer Credit and Protection Act;
• Note, however, that a consumer may withdraw consent in any reasonable manner, either orally or in writing.  This does not prohibit businesses from limiting the manner of revocation by contract, but in the absence of a specific contract provision, it’s not that difficult for a consumer to withdraw consent.

As might be expected, nearly every word of the robocall-to-cell-phone provision of the TCPA has been litigated, and courts don’t always agree on how the provision should be interpreted.  If you find yourself on the wrong end of a TCPA lawsuit—or just have questions—the business litigators of Steptoe & Johnson are well-versed in the TCPA and class actions, too.