Filing a TCPA lawsuit? There's an App for that

Note: Venable LLP Associate Mark Goodrich also contributed to this article.

Daniel Blynn, Venable LLP

It seems as though there is a mobile app for everything these days.  Hot new restaurant?  Find it on the OpenTable app and make a reservation.  Want to find love?  Swipe the Tinder app to the left or right and meet your soul mate.  Have an affinity for sci fi?  No problem.  Download the Star Trek Tricorder app and boldly go where no cell phone owner has gone before.  File a Telephone Consumer Protection Act (TCPA) lawsuit? Well, if plaintiffs’ attorneys get their way, consumers will be using an app to track unwanted calls and communicate with law firms about potential TCPA actions.

Two mobile applications, called “Block Calls Get Cash” and “Stop Calls Get Cash,” allow consumers to create legal documentation of unwanted robocalls, telemarketing calls, and debt collection calls.  The information, then, is forwarded to law firms specializing in filing lawsuits against businesses using robocalls and engaging in debt collection activities.

As our TCPA Update’s list of class action filings highlights, telemarketers face a business environment where telemarketing-related lawsuits are all too common.  Plaintiffs’ attorneys are adapting to modern technologies to reinvent the way they interact with potential plaintiffs.  As such, telemarketers must carefully navigate the common pitfalls of the TCPA, including a failure to obtain prior express written consent when making autodialed or prerecorded telemarketing calls to cell phones – a higher standard than the previous “prior express consent” standard.

As a reminder, the prior express written consent must:

1. Be in writing;
2. Bear the signature of the person called (electronic signatures are acceptable);
3. Identify the phone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered; and
4. Contain a clear and conspicuous disclosure informing the signatory that:
   1. By executing the agreement, he or she authorizes the seller to deliver or cause to be delivered telemarketing calls using an automatic telephone dialing system or an artificial voice; and
   2. He or she is not required to sign the agreement (directly or indirectly), or to enter into such an agreement as a condition of purchasing any property, goods, or services.

As we have written previously, in determining whether prior express written consent is required, telemarketers also must consider whether the device they are using to make calls could be considered an autodialer.  While the statutory definition and FCC interpretation of “autodialer” focuses on thecapacity of a device to store or produce numbers using a random or sequential number generator, and to dial such numbers, there remains an open question as to whether the device must have thepresent capacity to function as an autodialer or the mere ability (including in the future) to function as an autodialer.  Courts have failed to answer this question consistently, so telemarketers always should seek to obtain prior express written consent before making a call using a device that has the ability to function as an autodialer.

These apps serve as another sobering reminder that telemarketers must be vigilant in strictly following TCPA rules – or risk paying for it.

This article originally appeared on Venable’s All About Advertising Law Blog and is posted with permission from the authors.