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TCPA Issues to Watch in 2014 / Upcoming Webinar Announced

Mark W. Brennan

Mark W. Brennan,

Washington, D.C.

20 January 2014
TCPA Issues to Watch in 2014 Upcoming Webinar AnnouncedIn an ever-changing technological landscape, organizations are increasingly at risk under the Telephone Consumer Protection Act of 1991 (TCPA). The TCPA imposes restrictions on telemarketing and the use of automated telephone equipment, affecting any organization that engages with consumers through text messages, prerecorded calls, faxes, and other advanced technologies. Regulators and plaintiffs’ class-action attorneys are targeting alleged TCPA violations, and thousands of TCPA class actions seeking millions of dollars have been filed in recent years.

With so much at stake, organizations need to know about the latest developments and prepare appropriate compliance strategies to minimize the risk of a TCPA claim or enforcement action. The top TCPA issues to watch in 2014 are discussed below.  In addition, on February 6, members of Hogan Lovells’ TCPA Practice will host a special webinar on recent TCPA developments and key compliance challenges for 2014.  If you are interested in attending this webinar, please contact Mark Brennan at mark.brennan@hoganlovells.com.

What are the TCPA issues to watch in 2014?

1.    How will the FCC apply its new “prior express written consent” requirements?

The FCC modified its TCPA rules in 2012, and the last of those changes went into effect this past October. Under the new rules, companies must obtain “prior express written consent” before making certain telemarketing calls, and they must include specific disclosures in their consent requests. These new requirements created a number of compliance challenges for organizations, especially those which had obtained some form of written consent from individuals prior to the effective date of the FCC’s new rules. Several petitions have been filed with the FCC asking the agency to clarify how the new rules apply to those consents. 

2.    What does “automatic telephone dialing system” mean?

There is a lot of confusion over what types of equipment constitute an “automatic telephone dialing system” (“autodialer”) under the TCPA and the FCC’s TCPA rules. Numerous parties have asked the FCC to clarify the extent to which certain technologies, such as predictive dialing and previewing dialing systems, video calling, group text messaging, and virtual receptionist services, may involve the use of an autodialer (if at all).  Any statements from the FCC or courts on these issues are likely to have wide-ranging impact on a variety of innovative technologies and services, and organizations will need to be ready to adjust their compliance strategies in response. 

3.    To what extent do the FCC’s TCPA decisions bind courts in TCPA litigation?

In a recent case, the FCC argued that certain statements contained in a 2013 TCPA decision by the agency on vicarious liability were neither a binding “Final Order” nor entitled to Chevron deference. Instead, it stated that “[s]uch guidance, ‘like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law,’ is ‘entitled to respect’ commensurate with its ‘power to persuade’ and with the Commission’s body of experience administering the TCPA.” The upcoming ruling in that case could have a significant impact on the extent to which courts will defer to FCC decisions in future TCPA litigation.

4.    To what extent does the TCPA apply to mobile device applications, mobile financial services, and other new technologies and services?

TCPA lawsuits are now targeting the creators of new mobile apps and services that include communications features. As these popular technologies evolve, organizations will need to assess the extent to which the TCPA may apply.

5.    What happens if someone changes their telephone number?

As many as 37 million phone numbers are transferred each year from one subscriber to another. As a result, virtually all organizations making prerecorded or autodialed calls could eventually mistakenly contact the wrong person. Although many courts have agreed that callers should not face TCPA liability for calls to a reassigned telephone number, some courts have found callers liable under those circumstances. A new petition has asked the FCC to clarify that callers should not be liable for these unintentional contacts. 

6.    Will the number of TCPA claims continue to skyrocket?

TCPA cases are still being filed at an alarming pace, and plaintiffs’ attorneys continue to develop creative ways to pursue litigation against organizations placing outbound calls and text messages.  Although future FCC decisions are likely to impact the scope and substance of many of these cases, it remains to be seen whether they will affect the overall filing rate.

How can we help?

The combined resources of Hogan Lovells' top-ranked Federal Communications Commission (FCC) and privacy capabilities and our deep class-action litigation experience puts us in a position to provide top-notch advice on TCPA issues.  We have created a TCPA Working Group that brings together attorneys in our litigation, communications, and privacy areas. We provide regular TCPA counseling to clients from a broad range of industries, including technology, healthcare, communications, transportation, and financial services. We have extensive experience representing clients in court and before the FCC, Federal Trade Commission, Congress, and state enforcement agencies. In addition, we have secured dismissals and nominal settlements for clients in TCPA actions and have worked with the FCC to clarify rules addressing a number of key TCPA issues.

The author wishes to thank Wesley Platt from our Washington, D.C. office for his contributions to this article.

Mark W. Brennan

Mark W. Brennan,

Washington, D.C.

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