As detailed in the TCPA Section above, the Telephone Consumer Protection Act is the primary federal law regulating telemarketing. There are two separate private rights of action under the TCPA: (1) the autodialer and prerecorded voice restrictions contained in Subsection (b) of the statute, and (2) the do-not-call and privacy restrictions contained in Subsection (c) of the statute. While the overwhelming majority of TCPA litigation arises under Subsection (b), there has been a shift in emphasis following the Supreme Court’s Facebook decision that greatly reduced the scope of equipment that could constitute an autodialer. To the extent an autodialer or a prerecorded voice is not utilized to place a telemarketing call, only Subsection (c) of the TCPA is implicated.
Through Subsection (c), Congress directed the Federal Communications Commission (“FCC”) to develop rules “concerning the need to protect residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations to which they object.” Id. § 227(c)(1) (emphasis added). As defined by Congress, “telephone solicitations” are a limited subset of telemarketing calls, expressly excluding telemarketing calls to, among others, “any person with whom the caller has an established business relationship” or “with that person’s prior express invitation or permission.” Id. § 227(a)(4). In other words, a “telephone solicitation” is unsolicited telemarketing. Further, Congress authorized a private right of action if a person “received more than one telephone call within any 12-month period” placed “in violation of the regulations prescribed under this subsection” concerning unwanted telephone solicitations. Id. § 227(c)(5). And the FCC’s regulations implementing this subsection generally prohibit any person or entity from placing an unsolicited call for telemarketing purposes to an individual who has either placed their telephone number on the National DNC Registry, or who has requested not to receive calls from that specific person or entity.
Importantly, while Congress created a private right of action to enforce these do-not-call rules, at the same it also provided that having “reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection” as an affirmative defense to any such claim. Id. § 227(c)(5)(C) (emphasis added). That is, recognizing mistakes happen and wanting to avoid strict liability for telephone solicitations sent in violation of the FCC’s regulations, Congress mandated that if a defendant had implemented reasonable practices and procedures to honor DNC requests, this would be a complete bar to Subsection (c) claims. Specifically, a caller will not be liable under Subsection (c) if it can demonstrate that the violation is the result of error and that as part of its routine business practice, it meets the following standards:
To recap, a consumer would only have a private right of action under Subsection (c) if he or she received at least two calls or messages in violation of the regulations applicable to telephone solicitations within a 12-month period. Yet it would be a complete defense to any such claim if the caller can demonstrate that they have adopted the policies and procedures detailed above.
However, the FCC also has a separate section in its TCPA regulation that imposes overlapping requirements on telemarketing generally, and not simply on telephone solicitations (i.e., unsolicited telemarketing). While the better reading of these requirements in the overall statutory scheme is that only the FCC can enforce these particular rules, and not individual plaintiff’s through Subsection (c)’s private right of action, that has not stopped the TCPA plaintiffs’ bar from attempting to enforce alleged violations of these rules through class action lawsuits. Accordingly, any telemarketing compliance plan should also encompass the following, somewhat redundant, requirements to be on the safe side:
As noted above, it is crucially important for companies engaged in telemarketing to have internal policies addressing these topics – because doing so can serve as a complete defense to consumer’s DNC claim.