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It's not just telemarketers that are at risk of being sued under the Telephone Consumer Protection Act. Any company that makes customer phone calls, sends texts or faxes faxes could be open to liability under the TCPA. The TCPA prohibits unsolicited advertising by phone, text and fax. It provides $500 to $1,500 for each violation, plus allows for the recovery of lawyer fees and costs.
TCPA lawsuits are a booming business. For a plaintiff's side class action firm, a company's TCPA slip up can be a windfall. There's even apps that help consumers convert unwanted calls straight into lawsuits. Thankfully, a vigilant in-house legal department can help reduce the risks of unexpected TCPA litigation.
Investigate Now to Avoid Being Sued Later
TCPA class actions can be filed against any company, in any industry. Kristine Brown, a lawyer specializing in TCPA, privacy and data litigation, has seen everyone from financial institutions to pharmaceutical companies to gyms become targets of TCPA suits, according to Inside Counsel. Papa John's, for example, was sued for $250 million under the TCPA, after the fast food company allegedly sent out spam texts to over 500,000 customers.
One of the best ways to prevent TCPA litigation is to conduct an audit of current practices. Questions to answer include what methods are being used to contact customers, how contact information is obtained, how consent to be contacted is obtained, what types of calls are being made and what technology is being used to make them.
Perhaps, a Brighter Future
Several petitions are currently before the FCC which could help lessen the burden faced by companies. The first seeks clarification about calls made to wireless numbers. Under the TCPA, companies are not allowed to place unsolicited calls to cell phone numbers. However, often, a company will obtain consent and the number will later be reassigned to a new wireless customer. This petition would clarify whether subsequent calls were TCPA violations.
The second petition seeks to clarify the definition of automatic telephone dialing systems. Currently, some courts have found that companies may violate the TCPA by using phones with autodialing capacity, even when that those capacities aren't employed in the call.
In the mean time, however, it's up to companies and their in-house counsel to ensure that their practices comply with the law.