The Telephone Consumer Protection Act (TCPA) was signed into law in 1991. At that time, cellphones resembled bricks and were often connected to a bag and lacked the ability to text message, let alone the capacity to access the Internet at 4G speeds. Fax machines were ascendant, as email did not become wide-spread until the mid-1990s. Read More...
Much has changed since 1991. But while the wireless marketplace and consumer use of this technology have rapidly evolved, the TCPA has not. In growing numbers in the past few years, plaintiffs’ lawyers have exploited the law’s outdated language and conflicting federal court rulings to bring abusive and costly class action lawsuits against businesses. Statutory reform is needed to clarify interpretation of the law and to protect businesses from these lawsuits.
The TCPA allows consumers to sue companies for statutory damages of $500-$1,500 (depending on if the violation was willful) for each prerecorded call, specified autodialed call and unsolicited facsimile they did not consent to receive. At the time the TCPA was created, its sponsor, Senator Ernest “Fritz” Hollings (D-SC), explained the law was intended to facilitate actions in state small claims courts, which involve smaller sums and often do not require (or even allow) the participation of attorneys.
Today, however, TCPA cases are anything but small. Trial lawyers have used the law to file large class action lawsuits and professional plaintiffs purchase multiple cellphones in the hopes of receiving large payouts. The defendants in these cases are no longer abusive telemarketers, as these individuals often operate off-shore and can be very difficult to find. Instead legitimate businesses, big and small alike, are sued and forced to choose between settling the case or spending significant money defending an action where the alleged statutory damages may be in the millions or billions of dollars.
Further, many of these companies are being sued for reasons outside of their control, such as dialing a number provided by a customer that was later reassigned to another party, or because an unaffiliated third party mentioned their products via phone call or text in an advertisement sent to consumers.
The growing trend of TCPA litigation already has caused many companies to consider discontinuing the provision of helpful information to customers, such as prescription availability, credit card fraud alerts or electrical outages.
Modernization of the TCPA is critical to resolving these issues. Businesses should not be faced with an untenable decision: whether to curtail communications with their customers because of the severe risk of class action litigation caused by the manipulation of an out-of-date statute by plaintiff attorneys.