There’s Still Time Left To Comply: TCPA’s “Prior Express Written Consent” Requirement for Certain Text Messages and Calls Becomes Effective October 16

A friendly reminder: effective October 16, 2013, the FCC’s rules implementing the Telephone Consumer Protection Act of 1991 (“TCPA”) will require “prior express written consent” before a business may:

• Send advertising or telemarketing text messages using an “automatic telephone dialing system” (“ATDS”); or
• Initiate an advertising or telemarketing phone call to a mobile phone number using an ATDS or an artificial or prerecorded voice; or
• Initiate a telephone call to a residential line for commercial purposes (unless those commercial purposes do not introduce an advertisement or constitute telemarketing).

In most other cases, only “prior express consent” is required. The “established business relationship” exception for calls to residential lines will also be eliminated on October 16.

47 C.F.R. 64.1200; 77 FR 66935.

Businesses should make TCPA compliance a top priority, in part because the plaintiffs’ bar has been active in pursuing TCPA claims as class actions. Indeed, some courts have held that the TCPA is “essentially a strict liability statute,” causing TCPA claims to be potentially low-hanging fruit for hungry lawyers and plaintiffs. See, e.g., Harris v. World Fin. Network Nat’l Bank, 867 F.Supp.2d 888, 893 (E.D. Mich. 2012); Breslow v. Wells Fargo Bank, N.A., 857 F.Supp.2d 1316, 1318 (S.D. Fla. 2012) (quoting Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir.2011)).

Fortunately, there’s still time left before compliance becomes mandatory. InfoLawGroup has extensive experience helping businesses comply with the TCPA with respect to new and existing text messaging and telemarketing campaigns. Please contact us if you need assistance.