Many businesses today still attract customers the old-fashioned way: by calling them. Customer solicitation/retention studies show that among the most successful methods for businesses to win and retain customers is by telephone call, which is why telemarketing remains a major source of new and repeat customer business in the US.

With the widespread use of smartphones and the rise of text messaging as an inexpensive advertising tool, consumers have become highly accessible to businesses seeking to market their products and connect with their potential customers. In an effort to maintain consumer privacy in the face of this rapid transformation, the Federal Communications Commission (FCC) has made significant revisions to the implementing rules of the Telephone Consumer Protection Act (TCPA) of 1991.

In July 2015, the FCC vastly expanded the TCPA, potentially opening a floodgate of litigation. The rules indicate that companies are barred from using "autodialers"; must honor a customer's request to stop receiving calls; and cannot make more than one call to numbers that have been reassigned, regardless of whether the previous number-holder subscribed to the calls. These rules expand the October 2013 rules restricting the use of automated systems when contacting consumers, thus placing the onus on the caller to obtain consent and protecting consumer's privacy rights. Telemarketers are required to obtain “prior express written consent;” no longer use an “established business relationship” as a substitute for consent, and to provide an “opt-out” mechanism.

The TCPA has become a major litigation risk for companies who use text messages, artificial or pre-recorded voice messages, and other automated dialing technologies to reach its customers for advertising, informational and debt collection purposes, as hundreds of class action lawsuits have been filed in recent years seeking damages that amount to millions of dollars in TCPA violations. The Act permits a harmed “person or entity” to bring an action to recover monetary loss from such violations, and statutory penalties of $500 per violation, and up to $1,500 per knowing or willful violation. This costly reason alone should motivate companies to review their policies and practices and ensure their compliance with the TCPA.

Our cross-disciplinary team has handled dozens of cases over the years, including both plaintiff and defense representation. Representing one of the largest wireless carriers in the world, Dentons was at the forefront of litigating against spammers, telemarketers and other perpetrators who improperly exploited the company’s network in violation of the TCPA, the Computer Fraud and Abuse Act, and other common law causes of action. In our plaintiff’s representation, we have obtained judgments, monetary settlements, and preliminary and permanent injunctions, and have negotiated with state Attorneys General and the Federal Trade Commission. On the defense side, Dentons has represented clients in TCPA class actions and provided strategic compliance counseling related to the TCPA and other consumer privacy laws such as “Do Not Track” and behavioral advertising.

Our team is known for:

• Defending TCPA class actions in jurisdictions around the country;
• Representing clients in connection with subpoenas issued in underlying TCPA class actions;
• Advising clients on compliant TCPA marketing strategies and campaigns;
• Counseling clients on FCC regulations affecting TCPA enforcement;
• Advising companies on “Do Not Track” and behavioral advertising, and industry best practices;
• Representing wireless telecommunications providers in dozens of complex TCPA actions and related compliance matters; and
• Obtaining injunctive relief and payments from telemarketers, spammers and spoofers.

Dentons lawyers are well-versed in the nuances of the TCPA, providing counsel to corporations of all sizes. Combining that with our robust class action practice and deep bench of professionals across the US and around the world, our team provides you with the strength and experience for every stage of the game.

Insights

Eleventh Circuit Holds that One Unsolicited Text Message is Sufficient Injury

July 31, 2023

United States: Uprooting much of the court’s precedent in Telephone Consumer Protection Act (“TCPA”) class actions, the Eleventh Circuit sitting en banc unanimously held that a plaintiff who receives one unwanted, automated telemarketing text message has standing to sue under the TCPA because they have suffered a concrete injury.

U.S. Supreme Court Unanimously Closes Circuit Split By Adopting Narrow Definition of “Automatic Telephone Dialing System”

April 2, 2021

United States: On April 1, 2021, the United States Supreme Court unanimously sided with a social media titan, holding that to qualify as an “automatic telephone dialing system” (ATDS) under the Telephone Consumer Protection Act (TCPA).