TCPA & Consumer Privacy



As communication technologies evolve, we help businesses connect with consumers while avoiding exposure from consumer protection laws such as the TCPA.

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

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.

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.

FTC gives qualified support to FCC fight against illegal calls

Bloomberg BNA | July 05, 2017

Manchester commercial litigation partner Dan Deane provided commentary in this article about the Federal Trade Commission’s recent comments in support of the Federal Communications Commission’s initiative to allow telephone providers to block illegal telemarketing robocalls.

Failure to respond dooms robocall lawsuit against tech university

Bloomberg BNA | June 04, 2017

Manchester commercial litigation partner Dan Deane is quoted in this article about a matter involving a Telephone Consumer Protection Act (TCPA) case against Colorado Technical University.

The uncertain future of the TCPA in the Trump era

Bloomberg Law | May 07, 2017

Manchester commercial litigation partner Dan Deane and New York City commercial litigation associate Paul Williamson contributed this article addressing the ways in which the Trump administration may affect the TCPA.

Why even insured businesses should beware TCPA violations

Law360 | November 07, 2016

Albany commercial litigation associate Leah Bojnowski authored this column about how the Third Circuit recently held that a business’s commercial general liability insurance policy does not cover a TCPA settlement and the implications this has for business owners.

Trump, Clinton robocalls rising as Election Day looms

Bloomberg Law: Privacy & Data Security | October 18, 2016

Boston Intellectual Property Litigation associate Troy Lieberman is quoted throughout this article about increased robocalls as Election Day approaches and the TCPA implications. Click here to read the full article.

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