TCPA is an acronym that you should know. It stands for the Telephone Consumer Protection Act. It is the law that has historically governed and restricted robocalls to residential telephone lines. However, TCPA restrictions also apply to cellphone and texting. The claims, actions, violations, and citations for cellphones and texting are expanding exponentially. In July 2015, the FCC [Federal Communication Commission] released a Declaratory Ruling and Order and the cases to continue to fly in. The most recent came in the form of 2 FCC TCPA citations issued this month. Both citations center on consent.
TCPA’s consent for the telephone, cellphone, and texting calls requires an agreement that:
- Is in writing; and
- Is signed by the recipient of the calls and texts; and
- Clearly authorizes the delivery of the advertising and telemarketing calls/messages via ‘autodial calls, texts, or robocalls;’ and
- Lists the telephone numbers to receive the calls and texts; and
- The provisions must contain the following messages:
- By executing the agreement, the person signing authorizes the caller to deliver or cause to be delivered ads or telemarketing messages via autodialed calls, texts, or robocalls; and
- The person signing the agreement is not required to sign the agreement [directly or indirectly], or agree to enter into such an agreement as a condition of purchasing any property, goods, or services.
Also of special concern, it is important to note that the TCPA says that:
- ‘It is unlawful to require a consumer to consent to receive auto dialed or prerecorded telemarketing or advertising calls/texts as a condition of purchasing any property, goods, or service.’
- Consumer must have the ability to revoke consent to texts and calls “in any reasonable way at any time.”
- Consent is limited to the specific number listed in the consent and the specific consumer signing the consent. Text messages or calls cannot be sent to other telephone or cell phone number of the consumer signing the consent. It can only sent to the telephone or cells of the consenting consumer. And, if notified the number is no longer that of the consenting consumer, a new consent agreement must be signed by new telephone or cellphone owner.
- Liability attaches even if a third party is hired to send the text or make the cases
Case under the TCPA has been asserted in every industry including franchising. Both Taco Bell and Jiffy Lube have fallen victim to allegations of TCPA violations. The stakes under TCPA are significant. Each violation is $500. And, TCPA is ripe for class action. Text marketing is typically a wide sweeping consumer advertising campaign that can touch tens, hundreds, thousands of consumers.