TCPA & Consumer Privacy

Our Approach

Today’s mobile and cloud-based technologies enable companies to easily access and interact with consumers more conveniently and efficiently than ever. But businesses must understand the legal risks before leveraging these technologies. An antiquated consumer protection statute, enacted in the infancy of the digital and wireless age, has been expanded by the FCC to govern today’s communications technologies, along with a patchwork of related federal and state privacy rules.

Congress enacted the TCPA to protect consumer privacy from businesses using the mass telemarketing methods of the late twentieth century, including “autodialers” that randomly or sequentially dial mass lists of phone numbers and deliver artificial or prerecorded messages without human intervention. The statute forbids the intrusive use of such indiscriminate automated technologies absent an applicable exception or the express consent of the receiving party, and it provides powerful tools to consumers, including the ability to sue for $500 to $1,500 for each call made in violation of the statute. The generous remedies available under the TCPA have attracted class action lawyers seeking to aggregate the claims of thousands of consumers, resulting in potential awards in the tens or even hundreds of millions of dollars. State and federal agencies also enforce these rules by assessing fines and penalties.

As technology has evolved, the FCC has expanded the law’s reach to cover new communication channels, such as text and instant messaging, and new methods, such as software that dials from more targeted lists. Any business that intends to use automated technology to communicate with consumers, even when the intended communication is not telemarketing (including even informational messages to existing customers), must be careful to follow the TCPA’s requirements.

Our team helps businesses understand and comply with the TCPA, the FCC’s implementing rules, and the various state laws.

Our TCPA blog TCPA Info, News & Insights is an excellent resource to stay current on the TCPA and related laws. It gathers case decisions and commentary on TCPA developments.

Who we work with

Businesses operating in regulated industries that deliver products or services, including:

• Health care providers
• Financial service providers
• Insurance providers
• Communication service providers
• Franchisors and retail companies
• Customer relationship management (CRM) and marketing providers
• Professional sports organizations and other entertainment providers

Additional Consumer Privacy Law Experience

We also have experience with the following consumer privacy statutes and regulations:

• Fair Credit Reporting Act (FCRA)
• Fair Debt Collection Practices Act (FDCPA)
• Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM)
• Children’s Online Privacy Protection Rule (COPPA)
• Video Privacy Protection Act (VPPA)
• Federal Trade Commission (FTC) and Federal Communications Commission (FCC) regulations
• Laws and regulations concerning online privacy and mobile advertising

Recent Experience

Litigation

• Representing a solar energy provider in a putative class action in U.S. District Court for the District of Massachusetts, alleging violations of the TCPA for autodialed and pre-recorded calls as well as violations of the Do-Not-Call list.
• Represented a financial institution in putative class action in U.S. District Court for the Western District of New York, alleging violations of the TCPA’s autodialer provision. We negotiated a favorable settlement for the client.
• Represented a leading CRM and marketing provider in a class action litigation in U.S. District Court for the Southern District of New York alleging violations of the TCPA for autodialed calls. We negotiated a favorable settlement for the client.
• Representing a leading solar energy provider in a single plaintiff action in Massachusetts state court, alleging violations of the Do-Not-Call list provision of the TCPA.
• Represented a retail jewelry company in two single plaintiff TCPA cases in federal courts in New York. We negotiated early settlements on terms favorable to our client in both cases..
• Represented a franchisor of fitness centers in a putative class action in U.S. District Court for the District of Massachusetts alleging violations of the TCPA stemming from the text message marketing campaign of a franchisee. We successfully secured a voluntary dismissal of the matter.
• Represented a franchisor of quick-service restaurants in a putative class action alleging violations of the “junk fax” provisions of the TCPA arising from a franchisee’s fax advertising campaign. We facilitated early negotiations leading to the voluntary dismissal in the matter.
• Represented an educational institution in pre-litigation negotiations with a potential TCPA plaintiff who threatened to sue. We convinced the potential plaintiff that her legal and factual analysis of the TCPA was incorrect. Plaintiff ultimately walked away from her potential claims, and our client avoided litigation.
• Assisted a national bank by procuring early resolution on favorable terms of a plaintiff’s claims of violations of the FCRA.
• Assisting a leading financial institution defend against claims of violations of the FCRA

Compliance counseling

• Advising a marketing provider on compliance with the TCPA and recent FCC decisions, including drafting and negotiating contracts with clients and vendors to ensure compliance.
• Advising a rapidly-growing franchisor on TCPA compliance, including compliance by franchisees with regards to text messaging.
• Advising a professional sports organization and arena owner on TCPA and CAN-SPAM compliance regarding its phone calls, text messages, and e-mails to ticket holders.
• Advising a legal services provider on TCPA compliance for mass-texting campaigns.
• Advising a software company on TCPA compliance, including drafting contractual language to ensure compliance.
• Advising a professional sports organization’s e-commerce store on online privacy, including drafting privacy policies.
• Advising a financial institution on compliance with the TCPA, CAN-SPAM, and online privacy requirements