New Connecticut Mini-TCPA Provides for Giant Penalties and Attorneys’ Fees

Companies sending text messages or conducting voice telemarketing in Connecticut beware! Connecticut has substantially amended its telemarketing law (the “mini-TCPA”), which now may regulate even more conduct than the federal TCPA – particularly, push notifications and in-app messages. In addition, the mini-TCPA provides for reasonable attorneys’ fees, which may present an incentive for plaintiffs to bring suit; and also authorizes large penalties recoverable by the government. The amended statute becomes effective on October 1, 2014. This article is intended to highlight some of the key differences between the new Connecticut law and the TCPA that are relevant to businesses that already comply with the TCPA.

The amended Connecticut mini-TCPA, Conn. Gen. Stat. § 42-288a, effective October 1, 2014, tracks the TCPA in many ways; however, its key differences merit discussion:

• The Connecticut law prohibits a “telephonic sales call” made without prior express written consent. “Telephonic sales call” is defined to include a “telephone call” and a “text or media message." Under the statute, “’[t]ext or media message” means a message that contains written, audio, video or photographic content and is sent electronically to a mobile telephone or mobile electronic device telephone number, but does not include electronic mail sent to an electronic mail address.” This language clearly covers SMS and MMS messages already covered by the TCPA. However, the language is also much broader –  it may also cover push messages or in-app messages sent to a mobile telephone through the internet.
• A violation of the Connecticut law is deemed an unfair or deceptive trade practice. Under the Connecticut Unfair Trade Practices Act (“CUTPA”), a private plaintiff is authorized to seek actual damages, punitive damages, and reasonable attorneys’ fees in an individual suit or a class action. See Conn. Gen. Stat. § 42-110g. Because the statute provides for reasonable attorneys’ fees – which are unavailable under the TCPA – the Connecticut law may provide an incentive for plaintiffs’ attorneys to initiate more TCPA/mini-TCPA litigation, particularly in smaller lawsuits. Plaintiffs may attempt to bring suits alleging violations of both the Connecticut law and the TCPA. However, unlike the TCPA, the new Connecticut law does not provide for statutory damages – so a private plaintiff may face some difficulty establishing “actual damages.”
• The Connecticut law also provides for an outsized “fine” of up to $20,000 for each violation. The statute does not state whether each “telephone call” or “text or media message” sent without prior express written consent is a separate violation, however. Under CUTPA, an additional penalty of up to $5,000 may be awarded for willful violations. The new statute is silent on who may collect the $20,000 “fine.” Although “fines” are typically recoverable only by the government, the statute’s silence on this point may lead plaintiffs’ attorneys to argue otherwise. The $20,000 fine available under the statute could quickly snowball if a court determines that each text message or call made without prior express written consent is a separate violation.

For all the potential new liability the statute provides, at least some new defenses are available. For example, the Connecticut law provides exemptions in some cases for calls or texts sent “to an existing customer” and “in connection with an existing debt or contract, payment or performance of which has not been completed at the time of the telephonic sales call.” The “existing customer” (or “established business relationship”) defense is no longer available under the TCPA; and the latter exemption is much broader than the FCC’s exemption for debt collection calls under the TCPA.

In addition, the new Connecticut law provides several ambiguities that defense lawyers may seize upon. For instance, although the Connecticut law defines “prior express written consent” by direct reference to the federal TCPA regulations, the statute refers to “automatically dialed” calls, an undefined term. Thus, it is unclear how persuasive TCPA litigation will be with respect to the question of whether a given piece of software or equipment is an “automatic telephone dialing system” (“ATDS”). In addition, the new law applies to telephonic sales calls that are “recorded” – and the effect of this word may be subject to interpretation.

With all the new potential liability created by the new Connecticut mini-TCPA, compliance with the TCPA – and now the Connecticut mini-TCPA – is more important than ever. Fortunately, companies have until October 1, 2014, before the new Connecticut law takes effect. InfoLawGroup has extensive experience helping businesses comply with applicable law with respect to new and existing text messaging and telemarketing campaigns. Please contact us if you need assistance.