Beware of TCPA Litigation Traps


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February 2015 TCPA Compliance Monitoring Report

“It’s a Trap.” Any Star Wars fan will recognize that line from Admiral Ackbar in Start Wars: Episode VI – Return of the Jedi, and many businesses find themselves sympathizing with Admiral Ackbar when it comes to potential Telephone Consumer Protection Act (“TCPA”) litigation.

Among other restrictions, the TCPA prohibits making any call to a cell phone using an automatic telephone dialing system or an artificial or prerecorded voice unless the call is an emergency or the caller has the prior express consent of the called party. Currently, there are a number of petitions before the Federal Communications Commission (“FCC” or “Commission”) seeking to clarify the definition of prior express consent. Among the industries most commonly impacted by the TCPA’s prior express consent rules are healthcare providers, banks, and debt collectors.  

In one such Petition, filed on January 16, 2015, Citizens Bank (“Citizens”) asks the FCC to declare that a called party who purposefully and affirmatively takes steps to release his or her cell phone number to the public for regular use in normal business communications has given prior express consent to be called with an autodialer at that number or to be sent prerecorded messages. Citizens filed its Petition in response to class-action litigation involving the bank. According to its Petition, it executed two loan agreements, in 2007, with lead plaintiff in the class-action lawsuit; however, the plaintiff defaulted on the loan in 2010. After defaulting on the loans, the plaintiff stopped responding to the telephone numbers the plaintiff provided to Citizens in connection with the loans, and Citizens engaged a third party vendor to collect the debts.

In attempting to collect the debts, the third party vendor called the plaintiff’s cell phone number, but Citizens argues that because the plaintiff widely advertised her name and cell phone number for business purposes she consented to being called at that number for non-telemarketing, business calls. To supports its argument, Citizens points to the plaintiff’s inclusion of her cell phone number on the contact page and other pages of her business’s website (the same business for which Citizens extended the loans). Citizens also points to the use of the plaintiff’s cell phone number in advertisements for the business, online directory listings for the business, and on a government application asking the plaintiff to provide a business phone number.

In its Petitions, Citizens argues that the TCPA was never intended to prohibit normal business communications. It also points out that the Commission has viewed telephone numbers distributed in advertisements or on a party’s website as evidence that the party has made the number available for public distribution. Finally, Citizens point to two Commission decisions holding that debt collection calls to a residential telephone line do not violate the TCPA because debt collection calls are commercial calls which do not transmit an unsolicited advertisement.

The Commission has yet to seek comment on Citizens’ Petition, but the situation Citizens finds itself in underscores the feeling that plaintiffs currently have the ability to set litigation traps, whether intentionally or unintentionally, under the TCPA. Citizens’ Petition also highlights the importance of understand the application of the TCPA and the special statutory treatment of wireless phones thereunder. Due to statutory damages available under the TCPA, many TCPA class-action lawsuits ask for hundreds of millions of dollars worth of damages, but implementing a TCPA compliance policy can help businesses mitigate the risk of being pulled into expensive TCPA litigation.

Other TCPA News and Notes:

In January, 15 more petitioners filed ‘me too’ petitions seeking a similar retroactive waiver granted by the Commission in its Anda Order. The Anda Order provided a temporary waiver of the Commission’s opt-out notice requirements for solicited fax ads, and it established a deadline of April 30, 2015 for similarly situated parties to file petitions seeking similar treatment.

The FCC’s Consumer and Governmental Affairs Bureau issued a Public Notice seeking comment on these additional ‘me too’ petitions on January 30. Comments are due on February 13, 2015, reply comments are due on February 20, 2015.

If you have any questions about your business’s TCPA risk or would like help developing a TCPA compliance policy, please contact Jane Wagner: – 703-714-1321 – Linda McReynolds: – 703-714-1318 – or Robert Jackson: – 703-714-1316.

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