Mobile Advertising: Know the TCPA Before Hitting “Send”

What is the Telephone Consumer Protection Act?

In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA) in response to the proliferation of telemarketing campaigns. Although it does address the many tools companies use to reach consumers over the telephone – such as “robocalls” and autodialers, as well as requirements for the Do Not Call List – the TCPA is not limited to telephone communication. The Act also controls the use of any form of contact, including fax machines, email, and SMS text messages, that is used for the purposes of advertising.

What the TCPA Requires

First and foremost, compliance with the TCPA requires businesses to obtain consent from an entity before sending unsolicited communications for the purposes of advertising. If the business does not obtain that consent, either via express consent from the entity or implied consent from a business relationship with the entity, heavy restrictions apply to the communication between the business and that entity if the business seeks to advertise their products through that communication.

For businesses using telephone calls to market their products, it is unlawful to contact numbers listed on the National Do Not Call Registry (or List). Individuals can register their number for free on this list. It then becomes unlawful for companies to make unsolicited sales calls to that number. Companies may still be able to call if they conducted recent business with the individual due to implied consent, but once the individual asks the company to no longer call the number, the company must stop or risk facing penalties under the TCPA. Additionally, the TCPA limits the use of autodialing machines, which can make calls without the need for a person to manually enter in a phone number, and methods of blocking caller ID on the receiving end of calls. Individuals who wish to report unwanted calls from a company can contact the FTC to enforce the Act.

TCPA Lawsuits

Plaintiffs can collect large amounts of money in damages from businesses that do not follow the TCPA’s rules when it comes to phone calls. Some examples include the lawsuits below:

• In 2014, Melody Stoops, a woman in Pennsylvania, used a shoebox full of 35 phones to collect unsolicited calls from credit card companies, and then bring suit against those companies. The court could have potentially fined the companies for $500 or more per call, although her case was ultimately dismissed because the court held that she sought these phone calls, and so they were not unwanted.
• In December of 2017, Jan Konopca settled the last of his over 30 suits with telemarketing businesses, which paid out over $800,000 to the man after he sought action for 612 violating calls he received.
• A college student named Andrew Perrong continues to file lawsuits, over 45 now, for unsolicited calls from businesses. While he has not disclosed the amount of money he has gained from the suits, he has routinely asked for tens of thousands of dollars from each company, and quickly settled out of court. It is as simple as receiving a call for these plaintiffs to bring costly actions against companies who fail to comply with the TCPA, and when billions of automated marketing calls are being made by businesses of all sizes, it is critical that a business owner avoid the costs that can come when these fines begin to add up.

What about SMS Text Messaging?

For businesses using other forms of communication – in particular, SMS text messaging – the TCPA requires that the advertisement include a required list of notices. First, there must be a clear and conspicuous notice that the advertisement is, in fact, an advertisement. This means that at the top of the message, or on the first page of the fax, there must be a clear indication that the communication is for advertising purposes. Next, the message must include a mechanism that the consumer can use to opt-out of future advertising messages from the company. This may be an automated process that the consumer can use to cancel future messages, or a point of contact, such as a phone number, that the consumer can use to request to opt-out. The process must be clear, easy, and free of charge in order for the message to be in compliance. The communication must state that opting-out is an option, and guide the consumer to that mechanism.

Even Accidents Can Make You Liable

It can be easy for a business to accidentally cause a massive number of violations under this portion of the TCPA. In 2018, the CEO of an Illinois medical supply company faced $7.8 million in violations due to 15,666 faxes that he believed he had sent with the consent of the recipients. The class of people affected by these messages were able to prove to the court that these were unsolicited advertisements without notice that they had not consented to, and the Court held against the CEO. This kind of campaign can involve large numbers of messages, each with their own attached fine, that, while concerning alone, can become devastating when they add up.

Know Before You Hit “Send”

These notice requirements may be tricky to navigate if you are unfamiliar with what the TCPA asks of businesses, and if you are considering using fax, email, or text messaging as part of an advertising campaign, you should consult with the attorneys at Traverse Legal PLC, who familiar with the TCPA, when writing the text of your advertising message.

This blog post contributed, in part, by Traverse Legal Virtual Law Clerk Scott Pehoushek.