TCPA Compliance in the Wake of Facebook v Duguid
In the context of the Facebook v Duguid decision, considering all the issues it addressed and didn’t, clarified and confused, honest and conscientious actors have to be freshly concerned about TCPA compliance. That means checking all the boxes, doubling down on all the right things, and identifying and plugging all the holes in your call center operations. This article includes a partial list of steps you should take to minimize the likelihood of an adverse judgment should your company be forced to defend against a TCPA lawsuit.
TCPA Facebook v Duguid: It Ain’t Over Yet
The SCOTUS opinion in the matter of Facebook v Duguid goes beyond an interpretation of the language of the statute to apply a little common sense, as well. However and in consideration of all the issues it addressed and didn’t, clarified and confused, honest and conscientious actors have to be freshly concerned about compliance with the TCPA.
TCPA Facebook v Duguid: Punctuation Matters
The decision of the Supreme Court of the United States (SCOTUS) in the matter of Facebook v Duguid has been perhaps the single most anticipated in the realm of the TCPA, at least in the last decade or so, and all over a punctuation mark—a comma, to be exact. The legal battles over that comma are the stuff of legends and the implications of that decision are considerable, if not monumental.
TCPA Compliance: A Checklist
The costs of defending yourself to and through trial can be in the range of $500,000, which is considerable, in my humble opinion. If you lose, you must consider the penalties prescribed by law: $500 per violation and $1,500 per willful violation.That’s the bad news. The good news is that help is available if you give it some thought and know where to look. The cost is a lot less than throwing yourself on the mercy of the Plaintiff—trust me on this one. I have several suggestions.
TCPA: The Dark Side of Fax
If a Plaintiff can prove the transmission of a single unsolicited fax, the TCPA prescribed penalty is $500. If the violation can be proved to be willful, the penalty is trebled to $1,500. Multiply that by 5 or 10 to an individual Plaintiff and you’re talking serious money. Multiply that by 5,000 or so members of a class and the ink gets very heavy on the paper. There are ways to mitigate or even negate the risk … and the associated pain.
TCPA: The Dark Side of Dialers
If an individual Plaintiff can prove the transmission of a single voice call or text message to their cell phone without the legally valid prior express consent of the owner (or principal user) of that phone (more correctly phone number), the TCPA prescribed penalty is $500. If the violation can be proved to be willful, the penalty is trebled to $1,500. Consider a Class Action and multiply that by a few thousand members of a class and you’re talking very serious money. This article can help mitigate or even negate the risk … and the associated pain
Choose Your Words Carefully
All of us who have been around long enough have both enjoyed the benefits of choosing the right words and paid the price for choosing the wrong ones. Words have consequences. In the context of the TCPA, most of the action these days is with respect to the ATDS elements of the statute, where terms like automatic, dial, capacity, human intervention, random, sequential and system are the stuff of much debate … and consequence. It helps to understand the lingo.
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