As part of a broader campaign to go after “robocall” violations, the Federal Communications Commission (FCC) has announced a $5,134,500 fine against a company and its owners for making 1,141 robocalls in 2020 that violated the Telephone Consumer Protection Act (TCPA). The company told recipients of the robocalls that if they voted by mail, their personal information would “be part of a public database that will be used by police departments to track down old warrants and be used by credit card companies to collect outstanding debts.” The case is a strong reminder that political calling campaigns are also subject to the TCPA.
Both the TCPA and the FCC’s rules prohibit prerecorded voice calls to wireless telephone numbers without the recipients’ prior express consent, and this is true regardless of the caller’s intent. These restrictions apply equally to both telemarketing and informational calls, including all non-commercial and political calls. The only exception is for calls that are made for an emergency purpose.
A person or entity that violates these strictures when initiating a telemarketing campaign opens themselves up to significant liability risk, either from an FCC enforcement action or from civil lawsuits, including putative class actions. Marketers should consult with a legal professional before engaging in any calling or texting marketing campaign to make sure the campaign fully comports with all legal and regulatory requirements.
Meanwhile, in another ongoing FCC proceeding on unlawful text messages, a group of 28 state attorneys general weighed in on the issue of whether obtaining single consumer consent could allow for the delivery of calls and text messages from multiple marketers on subjects beyond the scope of the original consent.
These attorneys general urged the FCC to adopt more aggressive rules than it had proposed regarding consent obtained (by lead generators, for example) and limit consent to that “between one specific consumer and one specific seller,” disallowing the use of hyperlinks, marketing partners, or other, broader means of obtaining consent. While the carriers that would need to implement new rules have urged the FCC to be cautious about a change in approach, given the current environment, it certainly is possible that the FCC could take a harder line.