August 21, 2013

Dramatic Increase in TCPA Litigation Likely to Continue with October Revisions

Even without the revisions coming into effect on October 16, the number of lawsuits filed under the Telephone Consumer Protection Act (TCPA) has been growing exponentially in recent years: between 2011 and 2012 alone there was a 63% increase in TCPA lawsuits filed.
One reason for that increase was the Supreme Court’s decision in Mims v. Arrow Financial Services, LLC. The Court decided that private suits to uphold the TCPA may be brought in both federal and state courts.

The forthcoming changes to the TCPA further the development of an opt-in framework for all outbound marketing and placing the burden of proof for compliance squarely on the shoulders of marketers. At least in the short term, this will further the growth of TCPA lawsuits alleging marketers’ noncompliance.

Many courts have already ruled that implied consent wasn’t enough for marketers to make unsolicited outbound calls and, as in some of the cases, consumer debt collection agencies to use auto dialer equipment to call wireless numbers. For example, in the Meilleur v. AT&T Inc. settlement in March of this year, AT&T paid $4 million to settle a class action lawsuit alleging the company made calls using an auto dialer system and an artificial or prerecorded voice.
The number of TCPA lawsuits will likely continue to increase as the TCPA rule tightens in October. Already, many of the growing number of TCPA lawsuits filed are related to text message marketing campaigns, wherein companies spend a great deal of time and resources proving they obtained a consumer’s opt in before sending text messages and that they complied with the consumer’s expectations for the text messages. Under the new rule required express written consent, businesses will need to provide even more documentation proving they’re in compliance with the law.

This and other state and federal marketing privacy regulations are multiplying and getting stricter by the day, and marketers need to be ready.