November 29, 2021

Volume XI, Number 333

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AHEAD OF THE CURVE: Here Are the BIGGEST Emerging TCPA Theories the Czar Expects to See in 2022

Well, here’s another one of those articles with a bunch of stuff you’ll only hear about from the Czar. You’re welcome.

So I’m starting to prepare materials for the Summit, and I am definitely going to spend an hour or so discussing emerging TCPA litigation trends and what I expect to see next year.

These last few weeks have brought a handful of stories that I think are really going to set the tone for TCPA litigation in 2022. Here’s a quick high-level review of where I think things are headed.

1. Prerecorded Call and DNC Suits

No surprise here. Ever since Facebook was decided the Plaintiff’s bar has largely shifted tactics and has filed a ton of suits arising out of prerecorded calls and violations of the DNC.

As I’ve said over and over, Facebook ushers in a new paradigm where the text channel is the safest channel for consumer engagement. Directionally folks should consider moving away from prerecorded calls–which always carry TCPA risk–and to text messaging (outside of Florida) which carries the lowest risk currently.

On the DNC, folks need to remember that even B2B marketing calls can trip the DNC where the phone number is used for residential purposes. And remember that EBRs only last for a limited duration.

Express (written) consent remains your golden ticket in both contexts, although lead buyers need to keep in mind…

2. Suits Arising Out of Lead Fraud

I need to tread gently here–and I won’t be so taciturn at the Summit–but it has become increasingly clear to me that a non-negligible percentage of leads being sold out there are not completely legitimate.

It sickens me to think that some clowns are selling fake leads and thereby profiting by fraud–while simultaneously leaving the lead buyer holding the bag on the resulting (massive) TCPA risk.

Remember– if you buy a fake lead YOU are stuck with the consequences of phone calls made to a number without express consent. Good faith belief that you have a valid customer inquiry is not–yet–a defense. And this is a real risk.

I’m beginning to counsel my lead buying clients to consider using Human Selection technology anytime they are working with purchased leads. This is especially true in Florida to avoid…

3. Suits Brought under State Enactments

Again, this one is pretty obvious. Even before Facebook was decided we saw an onslaught of suits testing brought under state anti-robocall laws.

And then the mini-TCPA was passed and…yeah, forget about it.

If you’re not closely following the madness in Florida you should be. There’s essentially no way to call consumers in Florida without either express written consent or Human Selection technology right now. Everything could be an autodialer. And there is no EBR or inquiry protection anymore.

The hungry hungry Plaintiff’s bar has zoomed right in on text messages–particularly text clubs and discount programs–as their primary target right now. But I predict voice channel communication will be targeted starting early 2022.

At least Human Selection systems seem to be a “magic bullet” for mini TCPA suits, but they are no protection against….

4. Content Based Suits

Not long ago it seemed impossible that you would ever be sued for what your messages say–or don’t say.

The TCPA contains a thicket of (largely ignored) required disclosures in prerecorded (all) and live calls (made for marketing purposes) but those rules were promulgated under 227(d). And there is no private right of action under 227(d).

But the Plaintiff’s bar has successfully hit on 47 CFR 64.1200(d)(4) claims as permitting a vehicle to test the content of at least some calls. The theory is that 64.1200(d)(4) was promulgated under 227(c) in furtherance of the FCC’s authority to enforce the TCPA’s DNC rules. While this likely means that only individuals who were prevented from effectuating a DNC by a content violation have standing to enforce the provision, it also means–for instance–that every text message may need to fully disclose the name of the party calling.

It may also mean that every individual agent calling for marketing purposes may need to fully identify him or herself on every call.

These are largely new theories, so the full catalog of what to watch out for is still being compiled (by me.) Other suits are better tread, such as….

5. Internal DNC Suits

The Plaintiff’s bar has been on to this wicked theory for a while.

It's a pretty simple concept. The CFR requires marketers to maintain internal DNC policies and an internal DNC list. Failure to maintain such a list might constitute a single violation of the TCPA. Or–as the Plaintiff’s bar argues–it might convert every single marketing call made by the seller of a product into its own discrete violation.

Uh oh.

A number of courts have concluded that there is, in fact, a private right of action to enforce the Internal DNC requirements–again this is a 227(c) vs 227(d) battle–and most also seem to agree that each call made without such a DNC policy may pose a separate TCPA violation. Not good.

Mercifully, however, prevailing case law deems that only consumers who asked for calls to stop unsuccessfully have standing to enforce the provision–which essentially converts these suits into uncertifiable “revocation” class actions.

Indeed, TCPAWorld dodged a huge bullet earlier this year when a court refused to find that everyone on the National DNC list automatically has standing to enforce a purported Internal DNC violation–but I expect the Plaintiff’s bar to keep trying on this one.

Extremely scary stuff–but perfectly avoidable if you follow the rules. The same cannot be said for….

6. Suits Claiming Minors Cannot Give TCPA Express Consent

Now this one really freaks me out because it probably has legs.

As I reported a few weeks ago, a company called Smosh is being sued for sending text messages to individuals despite knowing that the cell phone users were underage. (Apparently as young as 13!).

And while I have strong opinions about parents suing companies for calls to their kid’s cell phones that they essentially enabled, these suits may have real merit.

Specifically, it is unclear to me where the common law rules regarding contract consent or tort consent are going to apply here. But they do in other contexts involving the TCPA. And the age of minority is very important under these doctrines.

This is especially scary because businesses do not know whether or not the people they are calling or texting are underage, which makes things like age verification certifications critical for webform submissions.

Bottom line–if you’re a company that maintains data regarding the age of individuals supplying cell phone numbers to you, it is probably best not to ignore circumstances where the intended called party is under the age of majority in their jurisdiction. Indeed, this may end up being another unavoidable TCPA trap just like…

7. Suits Over Call Abandonment

Oh, this is going to end up being the biggest “gotcha” theory of them all.

So as I explained at the Palooza, it is simply impossible to make unconsented marketing calls without maintaining a zero percent abandonment rate. As soon as you abandon a call you must play a prerecorded message under the regs. And prerecorded calls require express consent always.

On the other hand, if you choose not to play the message that–in and of itself–is likely an automatic violation of the TCPA.

Again, these theories are rarely discussed because they are just now rearing their ugly heads. But they are exceptionally dangerous. Just like…

8. Suits Over Phone Ring Time

If you don’t know the magic numbers of 4 rings or 15 seconds. You need to.

Anytime you see talk time on an outbound marketing call below these thresholds, you could be in trouble.

I fully expect the Plaintiff’s bar to add in claims under obscure 47 CFR 64.1200(a)(6) into future TCPA suits. And that will surely enable…

9. Suits Claiming One Call May Violate Multiple Sections of the TCPA and Trigger Multiple Penalties

It is often stated that TCPA damages are $500.00-$1,500.00 per call. But that is not necessarily so.

Some courts have concluded that a single call may violate multiple sections of the TCPA–thus allowing compounding damages.

For instance, if you use a prerecorded call to call a cell phone number without consent for marketing purposes after having been asked to stop you may violate the regular old PEWC requirements, the internal DNC requirements, and the prerecorded call content requirements all at the same time–that call may cost you $1,500-$4,500 per call.

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 323
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About this Author

Eric Troutman Class Action Attorney
Of Counsel

Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric has built a national litigation practice based upon deep experience, rigorous...

213-689-6510
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