US: new TCPA developments highlight significant litigation risks and compliance challenges

The US Telephone Consumer Protection Act (TCPA) is now a major litigation risk for companies in a variety of industry sectors. Hundreds of class action cases seeking millions of dollars from companies have been filed in recent years, and several recent court decisions as well as new Federal Communications Commission (FCC) TCPA rules that came into effect on 16 October 2013 are likely to spur more lawsuits in the coming months.

The US Congress passed the TCPA in 1991 to protect consumers from unwanted telephone calls, text messages and faxes. Two provisions of the statute have become increasingly problematic for companies as new calling technologies have developed — and as more consumers have started to rely exclusively or primarily on wireless telephones. First, the TCPA prohibits callers from using an ’automatic telephone dialing system’  (autodialer) or a pre-recorded or artificial voice message to call, inter alia, wireless telephone numbers, absent an emergency or the ‘prior express  consent’ of the called party. The FCC and several courts have determined that this restriction applies to both voice calls and text or short message service (SMS) messages. Second, the TCPA separately prohibits callers from using a pre-recorded or artificial voice message to call residential telephone numbers without prior express consent, subject to certain exceptions…

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