BY Jordan T. Vogel and Michael R. Alexander, Brown & Fortunato, P.C.
The use of modern technology to communicate with clients and to market products is increasingly common. On an almost weekly basis, I am on the receiving end of an autodialed or prerecorded text message or phone call encouraging me to purchase something. As these technologies become more common, so too does regulatory control and the risk of liability.
As an example, last year, there were over 1,500 lawsuits filed alleging violations of the Telephone Consumer Protection Act (“TCPA”), a federal law that regulates telephone solicitation, autodialers, prerecorded messages, and faxes, and which provides private parties a right of action to enforce the law. That number of cases represents a 9.4% increase in TCPA cases 
from 2022 to 2023. Similarly, there was an 18.7% increase in class action lawsuits involving the TCPA at the same time. That is significant, as some estimates put the average TCPA class action settlement at over $6,000,000. Shockingly, according to CRC Insurance Services, TCPA lawsuits have more than a fifty percent chance of being granted class action status, more than any other class of lawsuit under consumer fraud protection laws. And, while appropriate insurance can reduce the risks related to these technologies, insurance for TCPA liability is increasingly difficult to obtain.
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Given the increased risks and impacts of a TCPA lawsuit, the best defense is avoiding any offense in the first place. To do that, one must understand their legal obligations, remain up to date with any changes to the law, and establish robust compliance programs before a lawsuit, not after. As easy as that sounds, even sophisticated players have found themselves in deep water facing costly TCPA claims, including Caribbean Cruise Line, Capital One, Dish Network, and AT&T Mobility, each paying over $50,000,000 related to TCPA claims.
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In that vein, there have been two recent updates to the TCPA worth noting for anyone that engages in telephone solicitation or that makes use of autodialers and prerecorded voice messages to communicate with potential or current customers.
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First, as of March 26, 2024, the protections of the National Do-Not-Call Registry are applicable to text messages and phone calls, not just phone calls. That change is consistent with the FCC’s decision to allow mobile phone users to add their phone numbers to the National Do-Not-Call Registry. The practical impact of this change is that to the extent a business has no established business relationship with the contacted party, or a prior written agreement with the contacted party allowing for the communication, the business must access and review the National Do-Not-Call registry and adopt the standards outlined at 47 CFR 64.1200(c)(2)(i)(A)-(E), including maintaining appropriate do-not-call procedures and do-not-call lists, and training personnel, before communicating a text message to a mobile phone to encourage the purchase of a good or service.
Second, as of February 2, 2024, the FCC concluded that the TCPA’s restrictions on artificial or prerecorded voices “encompass[es] current AI technologies that generate human voices.” As a result, “calls that use such technologies fall under the TCPA and the Commission’s implementing rules, and therefore require the prior express consent of the called party to initiate such calls absent an emergency purpose or an exemption.” Similarly, the FCC recently addressed the issue of email-to-text messages, which are an increasing source of illegal text messages under the TCPA. These updates remind affected parties that new technologies are not a loop-hole to existing prohibitions concerning the use of autodialers and prerecorded messages. Counsel should be sought before implementing new technologies to comply with or reduce compliance with existing laws.
Last, it is important to remember that almost any contact with a consumer raises the possibility of a TCPA complaint, even if that complaint is baseless. For example, in Salcedo v. Hanna, a plaintiff filed a lawsuit under the TCPA and attempted to certify a class action based on the receipt of a single unwanted text message. At the district court level, the defendant filed a motion to dismiss the action, which was denied. Fortunately for the defendant and affected parties, on appeal, the Eleventh Circuit Court of Appeals reversed the decision and held that any alleged injury caused by the single text failed to constitute a concrete injury under Article III of the United States Constitution and dismissed the action. Nonetheless, that case serves as a stark reminder of the potential risks of communicating with current or potential customers via modern technology. In a world where consumers are inundated by phone calls and text messages encouraging them to buy something, the potential to communicate to the wrong person at the wrong time is tangible.
Ultimately, to be successful, affected parties must remain diligent on multiple fronts, including Federal telecommunication laws, like the TCPA. Such diligence requires prior planning, remaining up to date with changes to the law, and establishing appropriate compliance programs before a lawsuit is filed, not after. As highlighted here, the alternative is a potentially devastating lawsuit.