TCPA Needs Clarification Going Into 2015

Several class action lawsuits have been filed due to alleged violations of the Telephone Consumer Protection Act (TCPA). In fact, 2014 set a record for the TCPA class action settlements that were paid to people who received unwanted cell phone calls or unsolicited text messages for companies.

The Federal Communications Commission (FCC) was frequently brought in on TCPA class action lawsuitsin order to make rulings where the language of the law was not quite clear.

FCC Clarity on TCPA Violations

The FCC was able to address several of the petitions that were filed in 2014, but there are still dozens of questions that have gone unanswered such as the definition of an automatic telephone dialing system. This definition has fluctuated through TCPA class action lawsuits.

An additional question is whether an individual can revoke their “prior express written consent” given before October 2013 (when new standards were written) and cease communications from a company that is now sending him or her alleged unwanted cell phone calls or unsolicited text messages.

The FCC Commissioner stated that the number of unaddressed petitions reflects the “lack of clarity” in TCPA guidelines, and a company is more likely to avoid TCPA violations if matters such as automatic telephone dialing systems and others were clearer.

Third Party Liability

Many companies out-source their telecommunications. The question is whether the company being advertised in text or phone communications is liable for the TCPA violations performed by the third party or if the third party is the one ultimately responsible.

In two TCPA lawsuits from 2014, the court decided that a company was not liable for sending unwanted cell phone calls or unsolicited text messages However, certain actions may make a company liable for  TCPA violations and lead to the payment of large TCPA settlements.

Definition of Automatic Telephone Dialing System

The TCPA currently defines an automatic telephone dialing system as: “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.” This also applies to text messages.

Some TCPA class action lawsuit verdicts have held this definition to mean any machine that has the potential to be an automatic telephone dialing system whether or not it is used for such means. For other TCPA lawsuits, the system had to have the “present, not potential, capacity” to make phone calls or sent text messages, according to one verdict.

Many have petitioned the FCC to make clearer standards as to what qualifies as an automatic telephone dialing system.

Revocation of Prior Express Written Consent

Another question is whether an unwanted cell phone call or unsolicited text message is a TCPA violation if the person receiving the communication previously gave the company consent to contact them. Many TCPA lawsuits have claimed that an individual should be able to revoke this consent, but this is not a clear standard as yet.

Insurance

Some defendants in TCPA class action lawsuits had commercial liability insurance. Some insurance companies alleged that the defendants was not covered for the TCPA violations they were accused or convicted of violating. 

Some plaintiffs in TCPA lawsuits filed their lawsuits against these insurance companies after accepting a settlement that they paid out on behalf of the original defendant. Due to the large number of TCPA class action lawsuits that have been filed and are expected to be filed, this issue will become very important in court proceedings.

Many individuals have alleged that a company has violated the Telephone Consumer Protection Act and have joined a TCPA class action lawsuit against the company. Large TCPA settlements have already been awarded.

Join a Free TCPA Class Action Lawsuit Investigation

If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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