Scaling the 'Mountain' of TCPA Lawsuit Abuse

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April 08, 2015

Should companies have to climb a legal mountain just to talk to their customers?

That’s what some plaintiffs’ lawyers did to Mammoth Mountain Ski Area in eastern California, when they filed a class action lawsuit against the company for violations of the Telephone Consumer Protection Act (TCPA) for allegedly improperly calling a list of their ski customers who asked to be put on the resort’s contact list.

TCPA is a well intentioned but outdated law from 1991 that protects people from unwanted autodialed or prerecorded telemarketing calls. But it’s morphed into a vehicle for trial lawyers to try to score big paydays filing malicious lawsuits. TCPA litigation has exploded, up 560% between 2010 and 2014. And Mammoth Mountain Ski Area is just one of the companies caught in the snares of these abusive lawsuits.

What’s happening to Mammoth Mountain?

In 2012, the FCC ruled that companies would have to acquire “prior express written consent” for those people to receive autodialed or prerecorded telemarketing calls. This took effect October 16th, 2013. Nothing in the order said that customers who consented prior to that date must also comply with the new rules from the FCC. But now, Mammoth Mountain is being sued for calling previous customers who gave consent before the rule took effect.

The resort is now asking the FCC to clarify whether the new standards that took effect in October of 2013 also applied to customers who gave consent before that date. The U.S. Chamber of Commerce and the Institute for Legal Reform agree, and we have submitted comments to the FCC supporting Mammoth Mountain’s case.

Our letter states:

“If the agency had wanted to invalidate these earlier agreements establishing consent, it would have included clear language within the discussion of what is required to obtain adequate consent from consumers and would have instructed companies to contact all of their customers and acquire the new ‘prior express written consent’ described by the order before October 16, 2013. Instead, the order allows companies to continue using up their old forms acquiring consent under the old standards, and gives companies time to update their websites and other materials so that as of October 16, 2013, new customers coming onto their platforms (or previous customers providing a new telephone number) would be prompted to give consent at the heightened level before any telemarketing calls would be made to a newly- provided telephone number.”

This case is just another example of how the TCPA is being used by trial lawyers trying to hit the lawsuit jackpot. If the FCC doesn’t rule in favor of Mammoth Mountain, an untold number of businesses will be subject to this kind of lawsuit abuses.

You can read the full comments of the U.S. Chamber and ILR to the FCC here.