The Telephone Consumer Protection Act was created and signed into law in the 1990s, and FCC (News - Alert) rules implementing the Act were updated last year. The laudable goal is to prevent people from getting calls and other communications that they have to pay for, but don’t want to receive. While these rules are positive developments for most consumers, they have caused a fair amount of confusion – and some steep fines – for many businesses.
Litigation related to the TCPA has exploded in the last few years, according to attorneys Paul Bond and Henry Pietrkowski, at least in part because the formula for plaintiff recovery is so simple.
“Did the defendant send the plaintiff a text message, or call the plaintiff and/or leave a message using a prerecorded voice? Did the defendant use an ‘automatic telephone dialing system’ to send that text or make that call?” they wrote in a 2013 article on the Reed Smith website, as reported by CUSTOMER magazine. “If so, unless the message was for emergency purposes or the defendant had the plaintiff's prior express consent, the plaintiff will demand $500 in statutory damages per call or text. For willful violations, the TCPA provides a recovery of up to $1,500 per call or text.”
They went on to say that because there is no statutory cap, class action damages under the TCPA can quickly mount to “catastrophic” levels.
Indeed, a popular pizza chain last year agreed to pay more than $16 million in damages to settle a nationwide class action lawsuit alleging it unlawfully advertised its pizzas by unwanted SMS text messages, and a well-known vehicle maintenance brand shelled out a whopping $47 million in a separate settlement. And a major financial firm and three collections agencies recently announced the largest proposed cash settlement in TCPA history – $75.5 million, as recently reported by The National Law Review. These are, of course, just a few examples.
Businesses that don’t already have efforts in place to address TCPA would do well to begin exploring their options on this front as soon as possible. And, given various legal interpretations of TCPA to date, and the risk of very large statutory damages, taking a conservative approach to TCPA is probably the best course of action.
While the formula for plaintiff recovery may be remarkably simple, figuring out how best to limit your risk for TCPA violations in the first place requires a careful assessment of today’s networking environment.
As Becky Burr, deputy general counsel and chief privacy officer at Neustar, explains, companies that use auto-dialers need to know whether a phone number is a landline or associated with a mobile device. If it is a mobile number, she says, a company needs to verify that it has acquired ?prior consent to communicate using automated technology and that the person who gave consent still owns the number. If the communication is marketing, the prior consent needs to be written.
Understanding which numbers belong to wireless phones is no easy task, however, considering the widespread use of number porting and the fact that one out of every three U.S. households is now wireless only. That may help explain why up to 20 percent of customer records are linked to the wrong mobile phone number, according to a recent study.
Neustar’s Verification for TCPA solution enables companies to determine – with a high degree of confidence – whether or not a number is wireless, and whether it is assigned to the same subscriber who provided consent.
When clients submit a consumer’s name and phone number, Neustar instantly identifies whether the phone number is a wireless or wireline one. The Neustar solution creates a score reflecting the likelihood that the name and phone number still go together. If they do, companies that have the consumer’s prior written consent can be more confident they are contacting the right person. Neustar also offers a list of telephone numbers that were originally identified as wireline and have since been ported over to wireless providers; this is referred to as an intermodal ported telephone number identification service and is accessible at www.tcpacompliance.us.
Neustar’s Verification for TCPA solution is unique, adds Xavier Riley, vice president of product development at Neustar, because it employs the company’s phone data repository – the most accurate, comprehensive, and up-to-date consumer and business data in the industry. This database is updated routinely from more than 250 sources, including the nation’s leading telecommunications service providers.
“With access to more than 70 percent of all wireless and hard-to-find phone numbers supported by our proprietary linking logic, verifying consumer contact information has never been faster or easier.”
By helping you reduce risk, this kind of data assurance is like money in the bank.
Edited by Maurice Nagle