Kelley Drye


Telephone Consumer Protection Act (TCPA) Defense

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TCPA Tracker Newsletter

Keep up with the latest legal issues related to the Telephone Consumer Protection Act.

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As companies draw on mobile delivery platforms, cloud-based technologies, and third-party vendors to become more sophisticated in their use of telemarketing, autodialer and text message marketing campaigns, the business risks and potential for class action lawsuits increase in tandem. The Telephone Consumer Protection Act of 1991 (TCPA) has emerged as a cottage industry with plaintiffs’ attorneys routinely filing class action lawsuits seeking multi-million dollar claims and settlements.

The TCPA authorizes the recipients of certain types of unsolicited telephone calls, text messages, and faxes to sue for damages of between $500 and $1,500 per violation. In addition, the TCPA restricts calls and texts to wireless numbers, hospital guest rooms, and emergency numbers except with the customer’s consent. Complaints also typically include alleged state telemarketing law violations, which may involve additional statutory damages and/or fines. When those statutory damages are aggregated in a class action lawsuit, defendants often face astronomical financial exposure. Companies served with a TCPA class action – and companies that wish to avoid one – need counsel experienced in the patchwork of laws, regulations and legal precedents governing telemarketing litigation and compliance.

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Kelley Drye’s award-winning litigation, communications and advertising attorneys create a trifecta of experience unmatched in the business of defending clients in lawsuits involving the TCPA and other telemarketing-related statutes, including state telemarketing laws, the Federal Trade Commission’s (FTC) Telemarketing Sales Rule (TSR), and the Junk Fax Prevention Act of 2005 (JFPA). Our Litigation attorneys are actively defending clients in the TCPA class action matters that are making headlines around the country. We have litigated cases and proceedings for clients in industries including telecommunications, technology, consumer products and retail, among others.

In addition to the firm’s consumer class action defense capabilities, we are at the forefront in handling telemarketing-related litigation and policy matters with regulators, including the Federal Communications Commission (FCC), the FTC, and state Attorneys General. We regularly defend clients in connection with FCC and FTC enforcement investigations involving texts or calls to wireless numbers under the TCPA. This uncommon, multi-faceted wealth of knowledge provides our clients with the assurance that they will be well prepared for the twists of TCPA litigation, which itself can be multi-faceted. For example, our ongoing defense of a major consumer satellite service provider involves a lawsuit initiated by the FTC and several state Attorneys General that spawned a related proceeding before the FCC. Notably, this case is among the first to litigate the issue of vicarious liability for the privacy and marketing practices of a third party business partner under the TCPA, Telemarketing Sales Rule, and related state laws.

Our nationally-ranked Insurance Recovery practice can help secure coverage for defense costs and liabilities stemming from all kinds of TCPA exposure. The law regarding TCPA insurance coverage is evolving, and varies widely from state to state. An early and well-planned insurance strategy can make the difference between obtaining complete coverage, or losing it altogether. Our Insurance Recovery lawyers work closely with the overall team to ensure that the defense and insurance strategies are coordinated effectively, and that the costs are covered to the fullest extent possible.

Because no company wants to find itself served with a TCPA class action or face a regulator’s investigation, Kelley Drye’s Communications, Privacy and Information Security, Advertising and Marketing, and Insurance Recovery attorneys work seamlessly together to provide practical and sophisticated advice to help clients maximize opportunities while mitigating risks of potential investigations and litigation. These teams defend clients and secure favorable outcomes in regulatory investigations and work with our seasoned litigators when matters arise in court.

Representative Experience

  • Successfully defeated class certification for a Fortune 500 company accused of violating the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq., relating to a “blast faxing” campaign.

  • Representing a direct broadcast satellite service provider in litigation initiated by the FTC and the states of North Carolina, Illinois, Ohio, and California. Plaintiffs seek civil penalties for violations of the FTC’s Telemarketing Sales Rule for alleged calls placed to telephone numbers listed on the Do Not Call Registry and the provider’s internal Do Not Call list, and for calls made by independent third-party retailers.

  • On behalf of a direct broadcast satellite service provider, filed a petition before the FCC on the issue of third-party liability under the TCPA.

  • Represented a retail department store in a consumer class action lawsuit concerning alleged violations of the TCPA. The suit alleges that a class of individuals allegedly received calls from the store to their cellular phone numbers without providing the necessary consent.

  • Representing a quick service restaurant in a consumer class action suit brought in federal court in Maryland, alleging violations of the TCPA.

  • Representing a telecommunications provider in a consumer class action in Connecticut federal court. The suit alleges that the company placed telemarketing calls using an autodialer to a number registered on the national Do Not Call Registry, in violation of the TCPA.

  • Representing a national testing laboratory in a TCPA class action lawsuit.

  • Successfully obtained dismissal of a class action lawsuit concerning alleged violations of the TCPA. The case centered on third party liability issues for this Fortune 100 producer of consumer products and aerospace systems.

  • On behalf of telecommunications companies, responded to several complaints in Pennsylvania, California and Texas federal courts alleging telemarketing violations of the TCPA.

  • Obtained dismissal of a class action lawsuit filed against a web design company on the grounds that the client’s caller ID was “spoofed.”

  • Represented companies in successfully resolving several class action lawsuits alleging unauthorized charges for premium services to wireless telephone subscribers.

  • Represented a nationwide service provider in a class action in Illinois federal court, alleging violations of the Satellite Home Viewer Extension and Reauthorization Act (“SHVERA”), which requires certain companies to destroy personally identifiable information.

  • Represented a cloud-based technology provider in an FTC investigation concerning the issue of third party liability. The investigation closed without an enforcement action after staff presented a proposed complaint and order.

  • Representing a fax broadcaster in litigation brought in Illinois concerning alleged violations of the TCPA.

  • Defeated a plaintiff’s motion for class certification in a TCPA action with liability alleged to be in excess of $150 million.

  • Represented entities accused of assisting and facilitating other company’s telemarketing efforts in providing autodialing services, which are claimed to be in violation of the Telemarketing Sales Rule and TCPA.

  • Defended numerous companies accused of sending “junk faxes” in FCC inquiries and enforcement proceedings relating to the fax marketing rules.

  • Represented a nationwide financial services firm in connection with an FCC investigation of its compliance with the Do-Not-Call rules.  The investigation was closed without action.
Compliance Counseling
  • Serve as counsel for intervenors in the appeal of the 2015 TCPA Declaratory Ruling before the DC Circuit. (ACA International v. FCC, DC Cir. 2015).

  • Counsel numerous wireless, long distance and call management service providers regarding text/mobile marketing campaigns and compliance with the TCPA and other privacy related laws and regulations.

  • Counseled a fax broadcaster on compliance with the FCC’s unsolicited fax rules and the “high degree of involvement” standard for broadcaster liability.

  • Provided advice and counsel on TCPA regulations to a producer of digital communication products.

  • Provided telemarketing compliance counseling to a large health and auto insurance company.

  • Provided telemarketing compliance counseling to large home alarm company, an energy provider and telecommunication provider.

  • Represented a national retail chain and a major provider of call center services in connection with an FCC rulemaking concerning non-telemarketing calls to wireless phones.
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