traverselegal - December 17, 2012 - Internet Law
The Telephone Consumer Protection Act, mostly referred to as the TCPA, essentially creates certain requirements that must be met by any party that contacts another via automatic dialing systems, artificial or pre-recorded voice messages, SMS text messages, and fax machines. It’s really a contact, in the context of an advertisement. If someone is contacting another via any of those mediums, the Telephone Consumer Protection Act may apply.
Announcer: Welcome to Internet Law Radio, where we discuss the hottest topics in Internet law. If you are facing an Internet law issue, cyber law complaint, website or e-commerce issue, we have an Internet lawyer ready to help.
Matt: Hello, it’s Matt Plessner and welcome back to Internet Law Radio. We’re going to be talking about something called the Telephone Consumer Protection Act Compliance and what that is and what it entails. We’re joined by attorney at law, Brian Hall, from Traverse Legal, PLC. Brian, thanks for joining us, again.
Brian: Thanks a lot, Matt, good to be here.
Matt: Now, Brian, what is the Telephone Consumer Protection Act?
Brian: Sure. The Telephone Consumer Protection Act, mostly referred to as the TCPA, essentially creates certain requirements that must be met by any party that contacts another via automatic dialing systems, artificial or pre-recorded voice messages, SMS text messages, and fax machines. It’s really a contact, in the context of an advertisement. If someone is contacting another via any of those mediums, the Telephone Consumer Protection Act may apply.
Matt: Does this only pertain to telephone calls, Brian?
Brian: It does not. While telephone calls is likely the one that most people think of mostly when they hear about the TCPA, partly because it sets forth the requirements for the Do Not Call List and what advertisers must do in order to comply with it. It is definitely not limited to telephone calls only. I think, most importantly, it pertains to SMS text messages and fax machine advertisement communications. What it essentially covers is all of those kinds of communications and any ad that might be sent by a sender to any kind of recipient.
Matt: How does one comply, Brian, with the TCPA?
Brian: Well, that’s a great question, Matt. Absent express consent from the person that is the intended recipient or a preexisting business relationship, which, the preexisting business relationship is a term of art. It’s defined in the statute and there are interpretations of it. Simply put, absent that permission from the recipient or a business relationship that existed at the time, it’s unlawful to make any unsolicited telephone calls to those listed on the Do Not Call List or to make any kind of text message or fax advertisement without providing a list of notice requirements. Those notice requirements are outlined in the TCPA. When we look at all of those notice requirements, it’s important to recognize that, more often than not, it would be helpful for somebody, such as an advertiser, a marketer, or somebody else to speak with an Internet attorney to make sure that they are, indeed, complying with the TCPA because those notice requirements are vast in number.
I’ll give you a flavor of them. For example, if you are going to be sending someone a SMS text or fax, for example, the advertising notice that goes along with that text or fax must be clear and conspicuous, meaning, it should be on the first page or somewhere noted at the top that this is an advertisement. It must also state and include that there is an ability for the recipient to opt out of any further unsolicited advertisements. And that if they do not provide that opportunity to opt out, that it could be unlawful. And the recipient may have a cause of action against the sender under the TCPA.
Matt: Who enforces the TCPA, Brian?
Brian: The TCPA can be enforced by various parties. One, it could be enforced by private parties, meaning the recipient can file a cause of action, a lawsuit, against the sender. If they’re successful, they can prove what violation existed under the TCPA and be awarded up to $500 per violation. It doesn’t end there. If they can prove that the sender acted willfully or somehow knowingly violated the TCPA, they can collect up to $1,500 per violation. There’s definitely a big stick or teeth that go along with this particular piece of legislation. A private party isn’t the only one that can enforce it. It can also be enforced by a state attorney general. Keep in mind that this is a federal regulation, but states have adopted and/or enacted something similar that would allow them to take action. Ultimately, it can also be enforced by a federal agency, such as the FCC and maybe even the FTC.
Matt: Finally, Brian, what are some of the consequences of these violations?
Brian: I was alluding to, earlier, the different notice requirements. If somebody fails to provide that advertising notice, fails to include the opt out, fails to include their own contact information, so as to receive a request to opt out, maybe even fails to act upon the opt out request, that likely is going to be a violation. What happens when one violates the TCPA is, more often than not, they can be sued in a lawsuit. They may get notice via a cease and desist letter or something saying they believe that the TCPA has been violated, putting that entity on notice.
So that if it happens again, the recipient is in a better position to possibly get the $1,500 per violation, due to providing them notice and then arguing that it is now willful or a knowing violation because they did it again.
What happens when one violates the TCPA really depends upon what the sender wants to do. Like I said, the sender may file its own lawsuit individually, may notify a state attorney general or federal agency. A lot of it depends on the recipient, which makes it all that more important for any sender, be it a marketer, be it an advertiser, be it a company simply looking to create leads and potential new business, needs to make sure that they are familiar with this law, to the extent they need to have it interpreted further by an Internet lawyer, all the better, but you don’t want to find yourself on the other end of a lawsuit or any other kind of action involving the Telephone Consumer Protection Act.
Matt: Well, Brian, once again, I want to thank you for joining us today and talking about the consumer protection act compliance.
Brian: Thank you, Matt, I appreciate it.
Matt: And thank you for listening to us right here. I’m Matt Plessner on Internet Law Radio.
Announcer: You’ve been listening to Internet Law Radio. Whether you are facing a domain name, intellectual property, or complex litigation issue, we have an Internet law attorney ready to answer your questions.