- Does the TCPA apply to text messages?
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The Federal Communications Commission (FCC) 2015 Omnibus Declaratory Ruling and Order reaffirmed that text messages are subject to the same Telephone Consumer Protection Act (TCPA) restrictions as phone calls. The courts have also consistently held that a call is a text and a text is a call.
The Federal Communications Commission (FCC) 2015 Omnibus Declaratory Ruling and Order reaffirmed that text messages are subject to the same Telephone Consumer Protection Act (TCPA) restrictions as phone calls. The courts have also consistently held that a call is a text and a text is a call. Automated text messages would be considered the same as phone calls placed from autodialers. The Supreme Court's decision in Facebook v. Duguid significantly restricts which sorts of text messaging technology fits within the definition of an autodialer. But the prohibition on the use of autodialers to send text messages stands for any devices that are still considered autodialers.
- What happens if I call a reassigned number?
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Consent applies to the called party. So, if a number is reassigned to a different person, whatever consent you may have had for that number is no longer valid. Because the Telephone Consumer Protection Act (TCPA) is a strict liability statute—meaning violation is not contingent on fault or criminal intent—any call placed to a recycled number is a potential TCPA violation.
- What are the provisions of the TCPA?
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The main provisions of the Telephone Consumer Protection Act (TCPA) are as follows:
Calling Time Restrictions
Companies can contact residential consumers only between 8:00 AM and 9:00 PM (recipient’s time zone).Automatic Telephone Dialing Systems (ATDS)
The TCPA restricts autodialed marketing calls and texts to cell phones and other devices where the recipient might be charged for the call without written consent, and non-marketing autodialed calls without prior express consent.Robocalls
The TCPA does not allow the use of an artificial or prerecorded voice to be used to call a residential landline or wireless number for marketing purposes without prior express written consent.Identification Requirements
Among other things, the TCPA requires the caller to provide their name, the name of the company on whose behalf they are calling, and a telephone number or address which can be used to contact them again.National Do Not Call (DNC) Registry
Telemarketers are required to suppress phone numbers on the National Do Not Call Registry. Remember that some states have their own local DNC lists as well, separate from the federal list.Internal Do Not Call List
Companies are required to maintain an internal DNC list of consumers who asked not to be called or texted. - What are the B2B consent requirements?
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Marketers can make Business-to-Business (B2B) calls/texts using an Automatic Telephone Dialing System (ATDS) provided they have proper consent. For marketing purposes, you must have express written consent. The written consent may be an e-signature or button press, but it must include the following disclosures:
- You must disclose that the calls or texts will be sent for marketing purposes.
- You must disclose that the calls or texts will be or may be sent using an Automatic Telephone Dialing System.
- You must indicate that consent to receive the calls or texts is not a condition of any purchase.
- You must identify which brand will call and which number will be called.
- How do I avoid a TCPA lawsuit?
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The best practices for avoiding Telephone Consumer Protection Act (TCPA) violations and the attendant lawsuits are as follows:
Make Sure You Have Clear Consent
In order for a court to proceed with a class action, the class must first be certified. When it comes to the TCPA, if the defendant can provide evidence of consent procedures, and prove consent for the individual plaintiff, the class as a whole, or a subset of the class, then the class certification may be denied.Make Sure You Have Strong Arbitration Language
It is critical in consumer contracts to draft clear arbitration agreements, broad enough to cover any and all future disputes. Failure to do so could result in denial of arbitration or even class action lawsuits. When drafting your arbitration clause, be sure to include a detailed opt-out provision that contains specifics on how and where a consumer can opt out.Have a Well Written Consent Clause
If you ever need to contact a consumer with an autodialer or pre-recorded voice, make sure your contract includes a well written TCPA consent clause. The clause should include language that supersedes any existing opt-in or opt-out, clearly indicate the methods of consent revocation, clearly indicate the methods by which you may contact them, and include any third parties or affiliates that may contact them as it pertains to the contract.Use Your Dialer Technology Correctly
If you’re calling or texting a wireless number, the TCPA mandates that you must have express written consent to place those calls or texts using an Automatic Telephone Dialing System (ATDS). The Federal Communications Commission (FCC) defines an ATDS as equipment which has the capacity “(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The Supreme Court's decision in Facebook v. Duguid may limit which kinds of devices fit this definition but it does nothing to change the ATDS restrictions or the penalties that come with violating them.Document Everything, Follow the Rules, Be Able to Prove It
The courts may allow you to claim a “Safe Harbor Defense,” a strategy which allows companies to show proof that they have done all the things they can to be compliant with the TCPA. Those things include but are not limited to:- Having written policies and procedures in place and training employees to follow them.
- Maintaining an internal do not call list
- Scrubbing against the National Do Not Call (DNC) Registry
- Scrubbing against the individual state DNC registries
- Checking your data for reassigned numbers
- Do insurance companies cover TCPA damages?
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Commercial liability insurers have brought a growing number of cases seeking declaratory judgments that they do not have to provide coverage for their insureds’ alleged Telephone Consumer Protection Act (TCPA) violations. Some commercial liability policies have express exclusions for TCPA claims, while others may contain more general exclusions that may not fully exclude the TCPA.
Some insurers have amended existing policies to add TCPA exclusions but courts have not always found this practice to be legally enforceable. Other insurers have successfully managed to avoid covering TCPA damages by successfully arguing that TCPA violations fall under exclusionary clauses relating to invasion of privacy.
There are some companies that offer insurance policies specifically tailored to TCPA litigation, but they are very expensive.
- What is the risk of calling reassigned numbers?
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Approximately 100,000 mobile phone numbers are reassigned by wireless carriers every day. Potentially 20% of data in an average consumer contact list could be made up of reassigned phone numbers. Therefore, theoretically, you could be liable for the maximum Telephone Consumer Protection Act (TCPA) violation of $500 per call or text on up to 20% of your entire campaign.
While the Federal Communications Commission (FCC) has promised to create a comprehensive database of reassigned numbers, none exists currently. Your best defense is to scrub for reassigned numbers and to actively maintain your contact database by asking consumers for updated information.
- What are the risks of peer-to-peer texting under the TCPA?
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The Federal Communications Commission (FCC) issued a declaratory ruling in 2020 affirming that peer-to-peer (P2P) texting systems should not be considered automatic telephone dialing systems (ATDS). The Supreme Court's ruling in Facebook v. Duguid also ensures that P2P systems should not be regulated as autodialers.
- Can I obtain verbal consent by asking a consumer to respond affirmatively to an audio recording asking for consent to receive marketing calls?
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The Federal Communications Commission (FCC) has held that “written” consent can be obtained on a recorded telephone call, but you must ensure you meet all the requirements of the ESIGN Act or similar state laws regarding electronic signatures.
- Can consumers opt in via text message?
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Yes, but you cannot send a text from an ATDS that says, “Sign up for our marketing program.” That message would be marketing in and of itself, and you would have already violated the Telephone Consumer Protection Act (TCPA). However, you could do a call to action that says, “For automated offers, text DISCOUNT to XYZ number…” When the consumer responds to your offer, request a double opt-in, and get the consumer to agree to the required disclosures. Always ensure full TCPA disclosures are utilized, as well as an opt-out instruction.
- If a customer had previously opted out of receiving calls and/or text messages and I obtain new consent, does that new opt-in supersede the previous opt-out?
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Yes. Since they are opting in again, you have consent again.
- Do I need consent for Direct Response Text Marketing?
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You do not need consent for the initial automated response if the message is consistent with what your direct response offer has promised. The message must be sent immediately, containing only the requested information and nothing more. Any additional marketing messages would require consent.
- Am I legally required to let consumers know how to opt out?
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It is not legally required to provide customers with instructions on how to opt out. But it is a very strongly recommended best practice to provide customers with this information. If you don’t do so, it is possible that people will opt out with their own legally sufficient language that is not recognized by your system, leading you to continue to send messages or make calls which now violate the Telephone Consumer Protection Act (TCPA). You need to be able to recognize and honor opt-outs, so always include a simple opt-out instruction (“Reply STOP to Opt-Out” for example).
- If a consumer opts out, can I send a confirmation message?
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Yes, you can send one final message confirming the opt-out and offering information on how to opt back in. However, this final message cannot contain any sort of marketing. The Federal Communications Commission (FCC) recommends you send this message no later than 5 minutes after the opt-out occurs.
- If my consent language covers both calls and texts, does a consumer opting out of one mean they have opted out of both?
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Yes, opting out of one should result in opting out of both unless you’ve made it clear that there are different requirements. However, you can clarify with the consumer whether they are seeking to opt out of one particular program, or all calls and texts to the number.
- If a consumer wishes to opt out of receiving marketing texts from campaign A but still wants to get texts from campaign B, are multiple opt-out options allowed?
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Yes, you can have multiple campaigns with their own opt-out requirements, but you should make it very clear to consumers how to do it. For example, text “STOP A” to stop receiving messages from campaign A vs. “STOP B” to stop receiving messages from campaign B. It is also best practice to offer an inclusive opt-out option such as “STOP ALL.”
- What about AI texting?
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Following the Supreme Court's Facebook v. Duguid decision, AI texting systems are not likely to be considered autodialers.
- Can I send texts to collect on debts?
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Yes—as long as you can meet the implied express consent standards. Courts have generally accepted the argument that a consumer listing their phone number on a credit card or loan application constitutes giving consent to be contacted at that number for issues involving that account.
- What is the potential liability of marketing texts that offer consumers discounts or benefits for forwarding offers to their friends?
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This specific scenario has not been addressed by the Federal Communications Commission (FCC). In these sorts of circumstances, the FCC looks at a number of factors to determine who is responsible for user-initiated messages such as: Who decides when the text is going to be sent? Is it being used to do an unlawful activity? Are you spoofing? The issue is control. In this case, the fact that the consumers are going to be the ones sending the message and are choosing who receives the message makes it seem like the consumer should be responsible. But they are promoting your product, so there could be a vicarious liability issue.
- Are push notifications on smartphone apps considered to be texts by the FCC?
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No. Push notifications are user-controlled, making it difficult to argue that the Federal Communications Commission (FCC) should consider them to be a “call.”
- What is TCPA?
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The Telephone Consumer Protection Act (TCPA) is the primary federal law governing the regulation of telephone solicitations. It was first signed into law by President George H.W. Bush in 1991 and has remained the bedrock of federal telemarketing regulations ever since. Further legislation, such as 2019’s TRACED Act, and rulemaking by the Federal Communications Commission (FCC) and Federal Trade Commission (FTC) have built on the TCPA’s foundation. Numerous court decisions—including recent, prominent ones from the Supreme Court—have further entrenched the TCPA’s regulatory preeminence.
TCPA & DNC Fines
Maximum Standard TCPA Fine
$500 per violation
Maximum Treble TCPA Fine
$1,500 per willful violation
Maximum DNC List Fine
$43,280 per violation
Who Must Comply With the TCPA?
The TCPA regulates telephone solicitations. Therefore, any person, business, or entity that conducts telephone solicitations should comply with the TCPA. The TCPA covers voice calls, faxes, VoIP calls, and text messages.
The text of the law itself defines “telephone solicitation” as "the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person’s prior express invitation or permission, (B) to any person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization.”
The TCPA does not solely apply to the entities that conduct calling campaigns. Entities may be found vicariously liable for TCPA violations committed by agents that the entities have hired to conduct their calling campaigns, even if the hiring entities did not commit the violations directly.
What Are the Requirements of the TCPA?
The TCPA contains a number of different provisions. In order to avoid committing TCPA violations, callers must comply with all of these requirements.
Calling Time Restrictions
Callers may contact residential consumers only between 8:00 AM and 9:00 PM (recipient’s time zone).
Internal Do Not Call (DNC) List
Callers are required to maintain an internal DNC list of consumers who asked not to be called or texted.
Automatic Telephone Dialing Systems (ATDS)
The TCPA restricts autodialed marketing calls and texts to cell phones and other devices where the recipient might be charged for the call without prior express written consent, and non-marketing autodialed calls without prior express consent.
Robocalls
The TCPA does not allow the use of an artificial or prerecorded voice to be used to call a residential landline or wireless number for marketing purposes without prior express written consent.
Identification Requirements
Among other things, the TCPA requires the caller to provide their name, the name of the company on whose behalf they are calling, and a telephone number or address which can be used to contact them again.
National Do Not Call Registry
Marketers are required to suppress phone numbers on the National Do Not Call Registry. Remember that some states have their own local DNC lists as well, separate from the federal list.
How Is the TCPA Enforced?
The TCPA allows for a variety of enforcement mechanisms. The most significant is a private right of action that allows consumers to bring individual lawsuits and class actions. In 2019 and 2020, more than 3,000 TCPA complaints were filed in federal court. The TCPA is a strict liability statute with uncapped statutory damages and per-violation penalties that can be as high as $500-per-violation. Willful violations can be trebled as high as $1,500-per-violation. All of these elements combine to make for settlements and judgments in TCPA class actions that routinely reach tens of millions of dollars. One TCPA class action resulted in $925 million worth of penalties against a debt collector.
Additionally, through the TCPA itself and its legislative successors such as the TRACED Act, the TCPA gives the authority to enact regulatory enforcement to a number of government entities. In particular, the FCC and FTC have broad regulatory powers to enforce the TCPA.
What Are the Biggest TCPA Risks?
Reassigned Numbers
Nearly 100,00 numbers are reassigned each day. Since consent is associated with the called party and not the phone number, the possibility of contacting reassigned numbers brings an enormous amount of TCPA risk.
Personal Liability
In certain situations, executives and compliance officers are being targeted personally for litigation stemming from TCPA violations. This risk compounds the already unnecessarily punitive nature of TCPA litigation.
DNC Violations
Following the Supreme Court’s decision in Facebook v. Duguid, TCPA litigators have turned their focus to alleging DNC violations. Additionally, an increased emphasis on state-level telemarketing regulations is likely to raise the risk level of DNC violations. There are different DNC lists—federal, state, and internal DNC—and DNC compliance is taking on renewed importance.
Inaccurate Data
Marketers often acquire contact information from outside lead generators. While this can be a valuable source of new leads, it also brings the possibility of inaccurate or outdated data. Having the wrong information is often the first step in the pathway to TCPA violations.
Why Is the TCPA So Costly?
There are four key elements of the law itself that combine to make it the perfect vehicle for truly outlandish settlements and judgments.
Strict Liability Statute
The TCPA is a strict liability statute, meaning no forgiveness is given for unknowing or good faith mistakes. Marketers can rack up thousands of violations (or more) without even realizing that they are doing so and the TCPA offers no forgiveness. In fact, there are treble penalties for knowing violations.
Uncapped Statutory Damages
This element of the TCPA makes it such a costly source of litigation is the fact that it has uncapped statutory damages. The only limit on how large a penalty can be assessed is how many violations were committed.
Private Right of Action
The law’s private right of action—and court opinion determining that it can be used to pursue nationwide class actions—allows for such enormous penalties for TCPA violations. While the FCC has, on occasion, levied large fines for violations of telemarketing laws, that sort of regulatory action rarely happens at the scale and frequency of class actions brought by plaintiffs under the TCPA’s private right of action.
Per-Violation Penalties
TCPA penalties are assessed on a per-violation basis—up to $500-per-violation and up to $1,500-per-willful-violation. Combined with the uncapped statutory damages, these penalties can add up.
These four elements combine to make the TCPA an unprecedentedly lucrative vehicle for litigation. This has, unsurprisingly, encouraged a veritable cottage industry of TCPA litigators and professional plaintiffs to seek out and, in some cases, manufacture as many and as costly TCPA lawsuits and class actions as possible.
Four Most Dangerous Elements of TCPA Litigation
Strict Liability Statute
Companies are legally responsible regardless of fault or intent
Uncapped Statutory Damages
Companies may be liable for exorbitant damages
Private Right of Action
Consumers may bring individual lawsuits and class actions
Per-Violation Penalties
Multiple TCPA violations can be applied to a single call
What About State-Level Telemarketing Laws?
There are dozens of state-level telemarketing laws, with new ones being passed every year. Many of these state laws are modeled on the TCPA and often make use of the National DNC Registry. But it is important to note that the TCPA expressly does not preempt state or local telemarketing regulations. Compliance with regulations at every level is mandatory.
- How do courts determine if a dialer is an autodialer?
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The Supreme Court's decision in Facebook v. Duguid finally set a consistent precedent for how to interpret the TCPA's definition of an ATDS: “The capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” However, the practical application of this definition to specific dialers can still be confusing.
An October 2021 decision by the Southern District of California Court in Wilson v. Rater8 offers a useful precedent for answering this question. In dismissing the plaintiff's ATDS claims, the court identified six potential factors in determining if a device is an autodialer:
- “the nature of the message” with a generic, impersonal, or promotional message suggesting ATDS;
- “the number or frequency of messages, ” with “repetitive messages sent over a short period of time” suggesting ATDS;
- “[t]he ability to respond to or interact with the text messages (i.e., sending ‘Stop'), ” with interactivity of this character suggesting use of an ATDS;
- “the relationship between the parties, ” with a pre-existing relationship weighing against ATDS;
- whether identical messages were sent to multiple numbers simultaneously;
- whether the message was sent from a SMS short code or long code, with a SMS short code suggesting an ATDS.
While this is not a definitive set of factors that every court will use in every ATDS case, it offers a useful framework for determining what courts are likely to consider.
