What TCPA Law Changes Mean For Your Business

Peter Roesler, President - Web Marketing Pros

By Peter Roesler

President, Web Marketing Pros

internet-lawAs was mentioned in a previous article on this blog, there are important legal issues that business owners need to be aware of when they begin mobile marketing campaigns. Back in 1991, Congress passed the Telephone Consumer Protection Act to help consumers harassed by random dialers or unwanted faxes (though no protection from the NSA). Two decades later, the law has now become the main weapon citizens and the government have to fight unsolicited telecommunications. This is no exagerration. Though the law has been on the books for more than 20 years, 80 percent of the TCPA cases transerred to federal courts happened in the last five years. This article will address the changes to TCPA that recently went into effect and discuss a recent court decision that may affect future TCPA claims.

TCPA has been law for many years, and most business owners have developed consent forms that met with the guidelines. However, a change approved in early 2012 went into effect on October 15, 2013, so there may be a few things that marketers need to adjust. The changes are:

The new guidelines are not to be taken lightly. Law360 reported that the Tampa Bay Buccaneers were recently hit in Florida federal court with a putative class action for allegedly sending fax blasts in bulk in an effort to market tickets to football games. The motion was filed after the new guidelines took effect, even though a similar case had been dismissed just a few weeks earlier.

As the number of TCPA lawsuits increase some judges have tried to narrow the scope of the law. Legal experts are looking to a recent case in California, where in November 2013, a judge dismissed a TCPA lawsuit because the company in question didn’t use a random number generator.

“Judge Bauer’s ruling may provide a new defense strategy to the multitude of defendants facing potential liability of $1,500 per alleged violation of the TCPA,” wrote partners Mark Roth and Becca Wahlquist from the defense firm Manatt Phelps & Phillips LLP. “Courts have generally accepted the argument that technology qualifies as an ATDS under the Act simply because it has the capacity to automatically dial random or sequential calls – and not necessarily based on whether the machine was doing so at the time of the calls in question. Judge Bauer’s narrow reading of ‘capacity’ under the TCPA may provide defendants with ammunition to argue that their technology does not fall within the scope of liability because a number generator was not used.”

While this case provides a possible way out for business owners facing TCPA litigation, the best option for business owners is to avoid running afoul of the law in the first place. The cost of successfully defending a legal challenge can be as devastating for a business as paying the fine. Business owners who are embarking on mobile marketing campaigns that deal with the issues covered in TCPA should strongly consider using a marketing firm to handle the project or to advise them on any potential legal issues. Having an extra set of eyes review an organization’s mobile marketing plan can uncover potential issues before they become a problem.


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