New FCC Interpretation Of 'Express Consent' To Increase TCPA Class Action Liability

Plaintiffs frequently sue businesses in class actions for violation of the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (the “TCPA”). The TCPA generally prohibits calls and text messages to cell phones using automated systems or artificial or pre-recorded voice unless the consumer gives "prior express consent." The TCPA imposes statutory penalties of $500 per negligent violation, and up to $1,500 per knowing or willful violation. In class actions, the potential liability usually extends back four years prior to the filing of the complaint. The numbers can get very high, very quickly—for example, at least $500,000 for 1000 calls; at least $5 million for 10,000 calls, etc. Though the TCPA does not authorize attorneys' fees itself, plaintiffs usually recover them in class actions.

These cases often turn on whether the business has obtained “prior express consent.” Since 1992, the Federal Communications Commission (“FCC”), charged with implementing the TCPA, has interpreted this to mean that “persons who knowingly give their phone number have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.” In re Rules and Regulations Implementing the TCPA, 7 FCC Rcd. 8752, 8769 (Oct. 16, 1992).

The FCC, however, is now set to reverse itself. On June 11, 2012, the FCC published a new interpretation of "prior express consent" for telemarketing calls that will go into effect on October 16, 2013. The FCC's new interpretation now requires a prior, signed, written agreement, specifically agreeing to receive telemarketing calls or text messages via auto-dialer and/or pre-recorded voice. This rule does not apply to debt collection calls or texts, unless such calls or texts include or introduce any type of advertisement or marketing materials.

Under the new rule, 47 C.F.R. § 64.1200(f)(8) specifically provides:

The term prior express written consent means an agreement, in writing, bearing the signature of the person called that clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages using an automatic telephone dialing system or an artificial or prerecorded voice, and the telephone number to which the signatory authorizes such advertisements or telemarketing messages to be delivered.

(i) The written agreement shall include a clear and conspicuous disclosure informing the person signing that:

(A) By...