The Telephone Consumer Protection Act of 1991 (TCPA), amended by the Junk Fax Prevention Act of 2005, codified as 47 U.S.C. § 227, generally regulates certain advertisements sent by facsimile, telephone solicitations, and autodialed calls/text messaging or prerecorded voice calls to mobile phones. The TCPA and regulations promulgated thereunder prohibit certain types of activities and establish procedural and record-keeping requirements with respect to other activities. There can be severe penalties for noncompliance with certain provisions of the TCPA. Specifically, the TCPA includes a statutory damages provision awarding successful plaintiffs $500 per violation (i.e., per telephone call or facsimile transmission) or $1,500 per violation if the conduct is found to be willful or knowing. A plaintiff may also obtain injunctive relief under the TCPA. The TCPA may be enforced by means of individual actions, class actions, or actions brought by state agencies or by the Federal Communications Commission. Even companies with robust compliance standards may find themselves facing claims that their text, call, or fax activity violates the TCPA.
K&L Gates has a broad range of experience defending individual and class-action litigation involving the sending of text messages, phone calls, and facsimiles allegedly in violation of the TCPA. We regularly defend clients in TCPA lawsuits filed in federal and state courts throughout the United States, and are familiar with the complexities of the defenses available under the statute and its regulations, as well as the bases on which class certification can be defeated. We assist clients in obtaining contribution or indemnity from third parties and in seeking and obtaining insurance coverage both for costs of defense and for any underlying liability. We advise clients on their internal policies and procedures and recordkeeping practices to confirm that they are compliant with the TCPA and related regulations. Our experience includes:
- Defend clients in putative class actions alleging violations of the advertising fax provisions of the TCPA.
- Defend clients against TCPA claims allegedly arising out of calls placed to collect debts.
- Defend clients against TCPA claims allegedly arising out of calls and text placed for marketing purposes.
- Advise on insurance coverage in connection with TCPA claims.
- Advise clients regarding TCPA compliance in connection with telemarketing, informational, market research, and political calling activities.
- Draft and negotiate telemarketing and outbound-calling vendor agreements and review vendor practices and procedures on behalf of our clients.
- Advise on sufficiency for TCPA purposes of various mechanisms used to obtain customer consent, including written agreement language, as well as Web-based and text-based approaches.
- Advise on use of text-based platforms for informational calling and telemarketing campaigns.
- Advise on whether particular calling platforms qualify as “automatic telephone dialing systems” (ATDS) and devise campaigns to comply with ATDS restrictions.
- Conduct TCPA compliance audits of client practices and procedures.
- Present numerous in-house seminars regarding best practices and compliance with the TCPA.