©2016 Quarles & Brady LLP. This document provides information of a general nature. None of the information contained herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.

2. Can I give you a call?
Telephone Consumer Protection Act
(TCPA) Dos, Don'ts, and Defenses
March 24, 2016

3. • Restrictions on a wide variety of calls. Not just about telemarketing.
• Strict liability. Statutory damages.
• Class actions can result in large damages and settlements.
• More and more people use their cell phones as their only phone, and
there are more restrictions on calls to cell phones than to residential
landlines.
TCPA: Why should you care?
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4. • Class settlement with a major bank from a 2012 case: Almost $75.5
million
• Class settlement with a pharmacy/convenience store from a 2013
case: $11 million
• Class settlement with a fitness gym from a 2014 case: $15 million
• Class settlement with a media company from a 2013 case: $11 million
Large settlements
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5. • TCPA stretches far beyond the person calling you about a special offer
during dinner time.
• Applies to calling your debtor to request payment.
• “Telemarketing” includes any communication where even a portion
of the call or message encourages the called party to buy, rent, or
invest in any property, goods, or services.
• You can be liable for calls made on your behalf by a vendor through
agency principles.
Who can be liable - It’s not just telemarketers
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6. • 1991 law to protect people’s privacy interests by regulating calls to
residential land lines and faxes. 47 U.S. §227. Cell phone restrictions
added later.
• Motivated by desire to limit telemarketing calls, and to deter
companies from sending blast faxes that cost consumers money.
Also, consumers used to have to pay per call and text to their cell
phone. Now, that is generally not true.
• Three key things to remember about the TCPA:
– Strict liability.
– Statutory damages, trebled for willful and knowing violation.
– Class action potential.
TCPA basics
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7. • Authorized the Federal Communications Commission to make
regulations.
– Regulations at 47 C.F.R § 64.1200 (most recently updated in 2013).
– Despite legislative history about unsolicited telemarketing calls, the FCC
applied the cell phone prohibitions regardless of the content of the call.
Therefore the TCPA applies to debt collection calls.
TCPA basics
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8. • Just because the call, fax or message does not violate the TCPA does
not mean it is problem free.
• Fair Debt Collection Practices Act (FDCPA): Requires debt collectors
make specific statements; bars calls intended to annoy, abuse or
harass.
• Florida Consumer Collection Practices Act (FCCPA): Florida equivalent
of the FDCPA.
• Fair Credit Reporting Act (FCRA): Restricts communications about a
debt, requests for credit reports.
• Truth in Lending Act (TILA): Regulates certain credit practices and
resolving credit disputes.
Alphabet Suits
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9. • No calling a residential landline using an artificial or prerecorded
voice.
• Exceptions:
– You have prior express consent of the called party.
– Call is for emergency purposes.
– Informational message (e.g., bank account balance, credit card fraud
alert, school closing).
– Commercial purpose but no advertisement or telemarketing.
– Made by or on behalf of tax-exempt nonprofit.
– Delivers a health care message, by or on behalf of a “covered entity” or
its “business associate”, as defined by HIPAA.
Source: 42 U.S.C. §227(b)(1)(B); 47 CFR §64.1200(a)(3).
Prohibitions on calling home
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10. Prohibitions on calling cell phones
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No calling a cell phone using an automatic telephone
dialing system (“ATDS”) or an artificial or prerecorded
voice.
Only 2 exceptions. FCC cannot issue any other exceptions.
(1) Emergency purpose.
(2) Prior express consent of the called party.
Small Carve-Out: No liability if the wireless number used to be a landline
number and (i) the call is a voice call, (ii) not knowingly made to the cell
phone, and (iii) made within 15 days of the change to a wireless number; and
(iv) not on a Do-Not-Call List.
Source: 47 U.S.C. §227(b)(1)(A)(iii); 47 C.F.R. §64.1200(a).

11. • The TCPA’s cell phone restrictions apply to text messaging. Campbell-
Ewald Co. v. Gomez, 136 S. Ct. 663, 667 (2016), as revised (Feb. 9,
2016) (“A text message to a cellular telephone, it is undisputed,
qualifies as a ‘call’ within the compass of § 227(b)(1)(A)(iii).
– Example: the plaintiff sought to certify a class of individuals who received
a text sent by the defendant from automatic dialing equipment. Murphy
v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1304 (11th Cir. 2015)
• Cell phone restrictions apply to any calls to an emergency line or to a
guest room or patient room at a hospital, elderly home or the like. 47
CFR 64.1200(a)(1)(i), (ii).
Text messages and other restricted calls
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12. • Defined by statute as any equipment which has the capacity (A) to
store or produce telephone numbers to be called, using a random or
sequential number generator; and (B) to dial such numbers.
• Capacity is the present and future potential capacity.
– Includes an equipment’s “potential functionalities” but it must be more
than a theoretical potential.
• FCC has interpreted ATDS to include “predictive dialers”, meaning
equipment that uses a list of phone numbers and dials them without
human intervention. Unclear the degree of human intervention
required.
Source: 47 U.S.C. §227(a)(1); In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of
1991 30 F.C.C. Rcd. 7961 (2015); n re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991,
18 FCC Rec. 14014, 14091-94 (July 3, 2003).
What is an ATDS?
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13. Type Technology Purpose Consent
Cell phone ATDS, artificial or
prerecorded voice
Marketing Prior express written
consent
Cell phone ATDS, artificial or
prerecorded voice
Non-marketing Prior express consent,
written or oral
Residential
landline
ATDS Marketing No consent needed.
However, check Do-
Not-Call List
Residential
landline
Artificial or
prerecorded voice
Marketing Prior express written
consent
Residential
landline
ATDS, artificial or
prerecorded voice
Non-marketing No consent needed
Consent – When and what type

14. • Can be given by a consumer entering her phone number into a data
form when buying goods or a service, credit application, hospital
admission form, or into a membership application. Must have
provided the number to the creditor in the transaction that resulted
in the debt owed.
• Courts have held that providing a cell phone number is consent to
receive texts.
Source: In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 F.C.C.R. 559 (Jan. 4,
2008); Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1114 (11th Cir. 2014).
Prior express consent
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15. • When it is required:
– Telemarketing includes any direct or implied sales offer.
– Includes warning a customer that his reward points will expire.
• Written consent must clearly and conspicuously state:
– Authorizing the seller to deliver advertisements or telemarketing
messages using an ATDS or artificial or prerecorded voice.
– Not required to agree as a condition of buying property, goods or
services
Source: 47 C.F.R. §64.1200(f)(8).
Requirements for written prior express consent
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16. • Consent must come from the current subscriber of the cell phone.
• Courts have rejected the idea that what matters is the consent of the
intended recipient of the call. E.g., Osorio v. State Farm Bank, F.S.B.,
746 F.3d 1242 (11th Cir. 2014) (woman gave creditor the cell phone
number for her co-habiting boyfriend; that was not consent to call his
cell phone); Soppet v. Enhanced Recovery Co., 679 F.3d 637 (7th Cir.
2012).
• This issue of wrong numbers makes it important to require customers
to update their contact information and consider auditing the
viability of all numbers used.
Who can give consent
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17. • No room for mistakes. You meant to call Jim’s cell phone but instead
dialed Bob’s cell phone. Too bad. Bob can still sue under the TCPA.
• Up to 37 million cell phone numbers are recycled each year.
Businesses will inevitably call or message numbers that have been
reassigned to non-consenting recipients.
• Once reassigned, the caller gets one no-liability. After the first call,
each additional call incurs TCPA liability.
• FCC Compliance Suggestions.
– Interactive opt-out mechanisms, ability to record wrong number reports,
proceed for agent to record/replace new number, periodic contact
updates, software to recognize disconnected tones.
Who is the “called party”?
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18. • Frequency:
– Can be defined by business disclosure. Such as certain maximum
number of calls per week
– Otherwise, courts consider reasonable consumer expectations and
established business norms
– FDCPA/FCCPA prohibits calls that are made with the intent to annoy,
abuse or harass the caller. Also, common-law claims for breach of
privacy, the right to seclusion.
• Content
– Call or message must relate to the same, or be closely connected to, the
products or services for which the customer provided her number.
– Cannot deliver promotional messages without express consent for such
messages.
Scope of consent
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19. • Any reasonable manner, including orally or in writing.
– Reasonableness based on the “totality of the circumstances.”
• Companies cannot limit the manner in which a customer revokes
consent. Must honor the customer’s
• “Reasonable manner” is not tested. But according to the FCC, would
include oral revocation.
Can consumer revoke prior express consent?
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20. • Consumer’s consent extends to third-party vendors affiliated with the
business to whom the consumer provided his number.
– But keep in mind the limits on the scope of the call’s substance.
• Company can be vicariously liability under the TCPA for the calls of
third-party affiliates if there is an agency relationship. FCC-13-54
– Principal assents to agent acting on principal’s behalf and subject to
principal’s control.
– Principal can be liable where third party has apparent (if not actual)
authority.
– The fact that the entity is a beneficiary of the calling party is not
sufficient for liability.
Third party calls
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21. • Consumers can sue for:
– Their actual monetary loss.
– Up to $500 per violation (i.e., each call).
– Up to $1,500 per violation if the consumer can establish defendant
willfully and knowingly violated the TCPA. Trebling is at the court’s
discretion.
– Injunctive relief.
– However, statute does not entitle consumer to recover attorneys’ fees.
(But see FCCPA/FDCPA).
• State attorneys general and the FCC can also enforce.
– FCC sends a citation. Recipient can file a rebuttal. FCC publishes a
citation and order. Future violations can result in fines, for the cited calls
and new calls.
TCPA enforcement
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22. • TCPA litigation has been an attractive industry for plaintiff's attorneys,
especially class action counsel (high damages, litigation uncertainty
leading to settlements).
• From 2010 to 2014, TCPA litigation grew by 560 percent.
• From 2014 to 2015, TCPA litigation grew by 45%.
• In 2015, 3710 TCPA litigants.
• More and more people are only reachable by cell phone.
• Robocalls are virtually free to make, and can be placed from
anywhere.
• Increasing need to reach large numbers of consumers for
informational purposes as well as debt collection.
TCPA’s rising prominence
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23. • Concurrent federal and state jurisdiction. Mims v. Arrow, 132 S. Ct.
740, 744 (2012).
• Important because opens the door to federal TCPA class actions
where diversity jurisdiction lacking.
Where the TCPA plaintiff can file
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24. • Express consent issues can predominate over class issues.
• Issues as to how much each class member pays for his/her cell phone
service, and damages.
• Burdensome discovery at the class certification stage.
• Can inexpensive settlement with named plaintiffs moot the class-
action claims? An unaccepted, expired offer of judgment for the full
amount of relief requested does not moot the TCPA claim. An
accepted offer may.
• Question of standing where plaintiff lacks actual damages, under
Spokeo, Inc. v. Robins, pending in the U.S. Supreme Court. Affects
standing and class certification issues.
TCPA class actions
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25. • Corporate officer may be individually liable if the officer directly
committed or authorized a wrongful act. 47 U.S.C. §217.
• Can be liable if they had direct, personal participation in or personally
authorized the conduct that violated the TCPA. City Select Auto Sales,
Inc. v. David Randall Assocs., Inc., 2014 WL 4755487 (D. N.J. Sep. 24,
2014).
Individual liability
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26. • Statute of limitations. Four years under the "catch all" limitation
period set forth in 28 U.S.C. § 1658(a).
• Insufficient pleading of the number of calls, lack of consent, content
of the calls.
• The system was not an ATDS.
• Prior express consent was given.
• For do-not-call violations only, defendant can avoid liability if it “has
established and implemented, with due care, reasonable practices
and procedures to effectively prevent telephone solicitations in
violation of the regulations.”
Defenses
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27. • Get prior express written consent when the consumer buys the
product or service, or incurs the debt.
• Clearly state that the consumer is consenting to receive calls and
texts to his/her cell phone.
• State that by providing the phone number, you are confirming that
the number belongs to you alone, and not to a family member or
third party.
• Disclose that by providing the cell phone number, you agree that we
or our agents or contractors can call you at that number using an
ATDS or leave a pre-recorded or text message.
• Monitor compliance. One, or a handful, of calls is unlikely to result in
a lawsuit.
Avoiding TCPA liability
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28. • No sending unsolicited ads to a fax machine (business or residential)
without the recipient’s prior express invitation or permission.
• Can send a fax to recipient with whom you have an established
business relationship, if the recipient voluntarily provided the fax #.
• All faxes must have clear and conspicuous notice and contact info for
the recipient to opt out of future faxes. Honor opt-out within 30 days.
• Cannot simultaneously engage two or more phone lines of a business
using an ATDS.
• National Do-Not-Call list for residential consumers for telemarketing
calls. No separate list for cell numbers. 47 C.F.R. 64.1200(c)(2). Must
have automated interactive opt-out mechanism on all prerecorded
calls.
Other TCPA provisions
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29. • Commercial General Liability (CGL) policy may provide coverage
– “Loss of use” of property. The claimant contends it lost the use of paper
and ink because of the defendant’s junk faxes. Was the property damage
expected or intended by the sender?
– “Advertising injury” covers publication of material that violates a person’s
right to privacy. Does this include the privacy right to seclusion?
– Statutory damages are not civil penalties, fines or assessments, or
punitive damages.
• Directors & Officers; Error & Omissions or Professional Liability
policies
• Beware policies and endorsements that expressly exclude claims for
violations of privacy statutes or specifically, the TCPA.
Insurance coverage
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30. Questions?
Douglas.Knox@Quarles.com
(813) 387-0271
Zachary.Foster@Quarles.com
(813) 387-0273
Thank You
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31. © 2015 Quarles & Brady LLP - This document provides information of a general nature. None of the
information contained herein is intended as legal advice or opinion relative to specific matters, facts,
situations or issues. Additional facts and information or future developments may affect the subjects
addressed in this document. You should consult with a lawyer about your particular circumstances
before acting on any of this information because it may not be applicable to you or your situation.
31