Privacy & Cybersecurity Law Blog

On October 16, 2013, the Federal Communications Commission’s revisions to its Telephone Consumer Protection Act rules go into effect. As we previously reported, the revisions require that businesses obtain “express written consent” prior to advertising or telemarketing through (1) autodialed calls or text messages, or prerecorded calls to consumers’ mobile numbers, and (2) prerecorded calls to consumers’ residential lines. In addition, the FCC’s revisions eliminate the exemption that allowed businesses to place prerecorded advertising or telemarketing calls to a consumer’s residential phone line if the business had a pre-existing business relationship with the consumer.

Under earlier versions of the FCC regulations, a business could advertise or telemarket to consumers’ residential lines if it had either (1) “express consent” (oral or written) from the consumer, or (2) a pre-existing business relationship with the consumer. Automated calls to mobile numbers similarly required express consent. Courts generally found that consumers had expressly consented by providing their mobile number to the business as their preferred contact number.

With respect to the new “express written consent” provisions, the FCC has indicated that obtaining such consent pursuant to the Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”) is sufficient to satisfy the new requirements. Specifically, the FCC mentioned “permission obtained via an email, Web site form, text message, telephone keypress, or voice recording” as valid forms of express written consent. In the event of an enforcement action or a consumer dispute, however, the telemarketer will bear the burden of proving that it obtained consent in accordance with the regulations.

Consumers who receive calls or text messages in violation of the TCPA may obtain statutory damages of $500 per violative call or text message, and up to $1500 per call or text for willful or knowing violations. In the past few years, the number of class action cases in this space has skyrocketed as the potential for multi-million dollar jury awards or similarly high-value settlements has made pursuing telemarketing violations a lucrative endeavor for plaintiffs’ attorneys.