How the TCPA is Affecting Contact Centers

Hanna Walther, Ytel |  

In 2014, there was a sharp increase in Telephone Consumer Protection Act (TCPA) fillings and settings - and 2015 may continue to follow this trend. With multiple industries at risk, a strong compliance program is essential to help avoid potential class action lawsuits and liability. Continue reading below about the five hot issues to be familiar with in 2015.How the TCPA is Affecting Contact Centers

In 2014, there was a sharp increase in Telephone Consumer Protection Act (TCPA) fillings and settings - and 2015 may continue to follow this trend. With multiple industries at risk, a strong compliance program is essential to help avoid potential class action lawsuits and liability. Continue reading below about the five hot issues to be familiar with in 2015.How the TCPA is Affecting Contact Centers

Will the FCC provide clarity on other open petitions?

Many petitions to the FCC have been backlogged. Some are seeking clarification around the definition of "Autodialer" (see question 2), if prior express consent can be revoked and if that standard will apply to all types of calls (see question 4) and rules for fax solicitations and calls to numbers that have been reassigned to new users. In March 2014, FCC Commissioner Michael O'Rielly, stated that the large number of pending petitions reflects a "lack if clarity" in the rules and that "the FCC needs to address this inventory of petitions as soon as possible." Here's to hoping that 2015 is that year!

What's the definition of "Autodialer?"


The TCPA defines an autodialer as "equipment which has the capacity - (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." The FCC has added that the "basic function" of autodialers is the "capacity to dial numbers without human intervention."


But what does "capacity" mean? Courts have taken differing views on this question; with some favoring a broader interpretation (see Satterfield v. Simon & Schuster, Sherman v Yahoo! Inc. and Nelson v. Santander Consumer USA). Others have concluded that "capacity" means "present, not potential capacity" to produce all dialable numbers (see Hunt v. 21st Centry Mortgage Corp, Gragg v. Orange Cab Co. Inc. and De Los Santos v Milward Brown Inc.). Two additional cases in 2014 interpreted autodialer narrowly in the context of text or SMS messages (see Dominguez v. Yahoo! Inc. and Marks v. Crunch San Diego).

All that said, it's not surprising that telemarketers are understandably wary of the lack of consistency, and thus may have filed petitions with the FCC advocating for a more narrow definition. But, until new developments, potential defendants will convince the courts that the narrow definition of autodialer is the best interpretation.

Should I assume that third-party liability issues will continue to be a key issue?

Defendants can face potential liability based on two theories: direct and vicarious liability. In Gomez v. Campbell-Ewald the court recognized vicarious liability and in Thomas v. Taco Bell Corp. the court found that Taco Bell was not vicariously liable for text messages sent on its behalf by a third party.

Because it's common for companies to use third-party vendors to assist with communications, you must be cautious when establishing agency relationships. The application of vicarious liability principles will continue to be a key issue in many TCPA cases in 2015 and possible in the future.

Has there been an update around revocation consent?

This is a key issue that is still pending litigation. Can a consumer revoke consent to receive calls on a cell phone? Generally, an individual must provide express consent to be contacted on a cell phone using an automatic dialer, but it doesn't say anything about the right to revoke.

Currently, there's a split in authority, but courts are trending toward the conclusion that consent is in fact revocable - which is consistent with prior FCC decisions (see Grager v. Dell Fin. Servs, LCC and Osorino v. State Farm Bank).

Can TCPA defendants seek coverage from commercial liability insurers for defense?

Because there is no cap to the damages potentially awarded, defendants in TCPA litigations have turned to their insurance policies. To date, insurers claim damages are punitive and thus, uninsurable. Policyholders claim they're remedial and thus insurable. In 2013, the Supreme Court of Illinois concluded that damages of $500 per violation constitute insurable damages, which is important for policyholders throughout the country facing TCPA claims.

However, in any case, it's always best to review commercial general liability, professional liability and directors and officers insurance policies to determine whether they are entitled to the protections afford under the reasoning of the Lay decisions and comply with any applicable conditions (see Standard Mutual Insurance Co. v. Lay).

An original copy of this article can be found on lexology.com.

New Call-to-action

Subscribe now to receive relevant and informative content to your inbox!

About The Author

Hanna Walther, Ytel

Follow me on Linkedin

Hanna manages Ytel's Communications strategy and has worked in Marketing for five years. She has a Master's in Communications and is passionate about connecting customers and businesses by building authentic relationships online.


Like this post? Share your thoughts

New call-to-action