Telephone Consumer Protection Act (TCPA) and Consumer Privacy

Our approach

With today’s mobile and cloud-based technologies, companies can access and interact with consumers more conveniently and efficiently than ever. But businesses must understand the legal risks before leveraging these technologies. The Telephone Consumer Protection Act (TCPA)—an antiquated consumer protection statute, enacted in the infancy of the digital and wireless age—governs 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 mass telemarketing methods of the late twentieth century, including “autodialers.” The statute forbids the intrusive use of indiscriminate automated technologies without an applicable exception or the express consent of the receiving party. Under the TCPA, plaintiffs can sue for statutory damages of up to $1,500 per violation. These generous remedial provisions have attracted the attention of class action lawyers seeking to aggregate claims and threaten potential liability measured in tens or even hundreds of millions of dollars. State and federal agencies also enforce the law by assessing fines and penalties.

The FCC has expanded the law’s reach to cover new communication channels, such as text and instant messaging, and new methods to contact consumers, such as software that dials from targeted lists. Any business that plans to communicate with consumers using automated technology, even when the intended communication is not telemarketing, must be careful to avoid the compliance pitfalls. 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:

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

Additional consumer privacy law experience

We have experience with complex consumer privacy, data protection and security laws impacting businesses nationwide, including, among others:

Illinois Biometric Privacy Act (BIPA)
California Consumer Privacy Act (CCPA)
EU General Data Protection Regulation (GDPR)
Computer Fraud and Abuse Act (CFAA)
Federal Trade Commission Act (FTC Act)
Fair Credit Reporting Act (FCRA)
Fair and Accurate Credit Transactions Act (FACTA)
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)
Credit Card Accountability Responsibility and Disclosure Act (Credit CARD Act)
Driver’s Privacy Protection Act (DPPA)
Freedom of Information Act (FOIA)
Federal Trade Commission (FTC) and Federal Communications Commission (FCC) regulations
State consumer protection laws in all 50 states, the District of Columbia, and Puerto Rico

Recent Experience

Litigation

Represented a leading medical device manufacturer in an action in U.S. District Court for the District of Massachusetts, which alleged violations of the TCPA involving prerecorded calls regarding educational seminars; succeeded in defeating the plaintiff’s motion for class certification; then succeeded in getting the individual claims disposed of on summary judgment.
Defended real estate digital marketing specialist in U.S. District Court for the District of Massachusetts involving allegations that the defendant called plaintiff’s cell phone using an autodialer and delivered a prerecorded message without the plaintiff’s consent, and succeeded in achieving favorable non-class settlement following summary judgment briefing
Achieved successful early settlement on behalf of a digital performance marketing company 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 telemarketing calls
Defended a leading clinical laboratory network in a putative class action in U.S. District Court for the Middle District of North Carolina brought by one of the most notorious TCPA plaintiffs and alleged violations of TCPA involving automated phone calls to mobile phones; following aggressive litigation strategy, the case settled, pre-certification, on favorable terms to our client
Through persuasive early case arguments and settlement negotiations, achieved the early, pre-class certification settlements of two separate TCPA class actions in federal court in Florida against the corporate parent of a fitness club franchise
Successfully defended a regional banking corporation in a putative class action in U.S. District Court for the Western District of New York alleging violations of the TCPA with respect to alleged auto dialer communications and negotiated a favorable settlement before class certification
Successfully defended residential solar installer in a putative TCPA class action in U.S. District Court for the District of Massachusetts alleging violations of the TCPA and related Massachusetts laws with respect to alleged autodialer communications and calls in violation of the Do-Not-Call provisions of the TCPA
Defended national CRM and marketing provider in a putative class action in U.S. District Court for the Southern District of New York against allegations of autodialed and pre-recorded telemarketing calls and achieved a favorable settlement pre-class certification
Defended national CRM and marketing provider in related putative class actions in U.S. District Court for the Southern District of California: (1) alleged violations of the TCPA for autodialed and pre-recorded telemarketing calls; and (2) alleged violations of California state law for recording phone calls without consent; successfully briefed and argued bifurcation of the individual merits from class discovery and the cases settled favorably for our client on individual bases prior to class certification

Compliance counseling

We’ve also provided compliance counseling to a variety of clients, including advising:

Marketing provider on compliance with the TCPA and recent FCC decisions, including drafting and negotiating contracts with clients and vendors to ensure compliance
Rapidly-growing franchisor on TCPA compliance, including compliance by franchisees with regards to text messaging
Professional sports organization and arena owner on TCPA and CAN-SPAM compliance regarding its phone calls, text messages, and e-mails to ticket holders
Legal services provider on TCPA compliance for mass-texting campaigns
Software company on TCPA compliance, including drafting contractual language to ensure compliance
Professional sports organization’s e-commerce store on online privacy, including drafting privacy policies
Financial institution on compliance with the TCPA, CAN-SPAM, and online privacy requirements

Media Clips

Unwanted pre-recorded calls don’t violate TCPA

Massachusetts Lawyers Weekly | January 23, 2020

This article mentions Manchester Complex Commercial Disputes partner Dan Deane and Boston Complex Commercial Disputes associate Troy Lieberman, who earned a favorable ruling on behalf of defendant Boston Scientific in a class action suit alleging violations of the Telephone Consumer Protection Act.

FTC steps up actions against VoIP providers to abet scammers

Rochester Business Journal | January 17, 2020

In his latest monthly column, Rochester Corporate partner Jeremy Wolk analyzes a recent action by the Federal Trade Commission to crack down on VoIP providers who turn a blind eye to their clients’ unlawful telemarketing practices. Washington, DC, Complex Commercial Disputes associate Brian Donnelly and Rochester Complex Commercial Disputes associate Zach Osinski contributed to the article.

Keep up with laws developing to protect our consumer data

Rochester Business Journal | November 15, 2019

In the latest installment of his monthly column, Rochester Corporate partner Jeremy Wolk analyzes state-level legislation aimed at enhancing consumer privacy rights and protections, similar to the European Union’s General Data Protection Regulation. Rochester Corporate associate Jenny Holmes contributed to the column.

Boston Scientific asks judge to toss robocall suit

Law360 | July 12, 2019

This article highlights Boston Intellectual Property associate Troy Lieberman, who is representing Boston Scientific in a proposed class action suit alleging violations of the Telephone Consumer Protection Act.

How to contact your customers without getting sued

Bloomberg Law | June 11, 2019

San Francisco Complex Commercial Disputes partner Karl Belgum wrote this contributed article explaining that businesses need to perform a self-assessment of the risks of automated customer contact, given the FCC’s failure to clarify the scope of the Telephone Consumer Protection Act.

Facebook lawsuit underscores importance of transparent collection and use of data

Rochester Business Journal | January 25, 2019

Rochester Corporate partner Jeremy Wolk wrote this contributed column analyzing a lawsuit filed against Facebook in Washington, DC, alleging violations of state-level consumer protection laws by the social media company. This article incorporates perspective from an alert written by Washington Complex Commercial Disputes associate Brian Donnelly, Rochester Corporate associate Jenny Holmes, and Los Angeles Government Investigations & White Collar Defense associate Karina Puttieva.

High court may upend TCPA litigation landscape

Law360 | November 13, 2018

Boston Intellectual Property associate Troy Lieberman is quoted in this article looking at possible FCC changes to the definition of “autodialer” in regard to the Telephone Consumer Protection Act.

DC Circuit Delivers Relief, but Not Clarity, with TCPA Ruling

Law360 | March 15, 2018

Boston IP litigation associate Troy Lieberman is quoted in this article explaining how the DC Circuit Court’s ruling on the FCC’s telemarketing rules will provide some relief for businesses.

Improper robocall consent revocation lets Kohl’s off the rack

Bloomberg BNA | August 17, 2017

In an article about a class action complaint against Kohl’s Department Stores, Boston IP litigation associate and TCPA team co-leader Troy Lieberman is quoted on opt-out mechanisms for consumers.

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