Proactive Customer Communications Featured Articles

There were plenty of legal questions around the Telephone Consumer Protection Act (TCPA) in 2014. Some commentators predict that 2015 will be no exception, as the Federal Communications Commission (FCC (News - Alert)) provided guidance on some issues but left other issues unsettled and therefore open for legal dispute.

Third-party liability issues were one area of much interest in 2014.

Defendants face potential liability under the TCPA based on two theories: direct liability and vicarious liability. The TCPA focuses on the civil liability of the party actually making or initiating an unsolicited call or text message. But, late in 2014 the 9th Circuit U.S. Court of Appeals decided two cases recognizing vicarious liability. The decisions demonstrated that certain involvement and interaction between a company and its contractors may establish agency relationships that can ultimately lead to vicarious liability under the TCPA.

The definition of an autodialer also was in question last year. Under the TCPA, an autodialer is “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.”

Yet recent court opinions have been split on the meaning of “automatic telephone dialing system” under the TCPA. In Davis v. Diversified Consultants, for instance, the court applied a very broad interpretation of the definition and found that a predictive dialer was an automatic telephone dialing system because it had the capacity to store numbers and dial sequentially.

Other courts have defined it more narrowly, but this issue is still very much alive in the courts.

The revocation of consent also is a key pending legal issue relating to the TCPA. Can a consumer revoke consent to receive calls on a cell phone?

The TCPA generally requires prior express consent before a consumer can be contacted on a cell phone using an automatic dialer or prerecorded message, but there’s no mention about whether a consumer can revoke the right.

There is a split on whether consent can be revoked under the TCPA, but the courts are tending toward the conclusion that consent is revocable.

While these issues play out in the courts, contact centers and businesses that rely on outbound calling are wise to play it conservatively when it comes to the TCPA.