Telemarketing’s Untold Perils
In response to concerns that these requirements presented a trap for the unwary, the FCC ruled that the first call to a reassigned number was not actionable under the TCPA.
The FCC assumed that the conversation with the called party or his/her outgoing voicemail would inform the caller that the number had been reassigned. This assumption ignores text messages, which culminate in neither a live conversation nor a voicemail and factory installed outgoing voicemail messages, and affords no relief to those whose calls are picked up by other customary users of the phone.
Can Consent Become Stale?
Yes. The FCC ruled that previously obtained consents that do not meet the current definition of prior express written consent are not valid.
Is There Any Good News?
The FCC granted a petition filed by the Retail Industry Leaders Association and held that the following does not violate the TCPA: 1) a one-time text message, 2) sent immediately in response to the consumer’s request (in response to a call to action or other on-demand marketing), 3) that contains only the information requested by the consumer and no other advertising or marketing.
The FCC introduced its omnibus ruling by noting that the number of TCPA class actions has been rising. Unsurprisingly, the commission’s open-ended ruling has not stemmed the tide of litigation.
Two Supreme Court cases this year were poised to potentially curb TCPA class actions. In Campbell v. Ewald, the court was asked to rule on whether an offer of judgment could moot a class action. The court held that the class action in that case was not mooted on the facts presented. Courts across the country are now being asked the same question under slightly different fact patterns. Those cases will need to percolate further before chilling effects, if any, emerge.
In Spokeo v. Robins, the court was asked to rule on whether mobile phone users who do not experience any unwanted charges or other tangible harm may nonetheless bring a TCPA lawsuit in federal court. A ruling has not yet issued and the recent passing of Justice Antonin Scalia means a split decision could result. Accordingly, TCPA litigation is likely to continue.
If there is a silver lining, it is that litigation may flesh out, through court opinions, some of the questions left unanswered in the FCC’s ruling. Monitoring those opinions can help companies develop a roadmap for ensuring TCPA compliance in the future.