Complying with, and trying not to get sued for violating the Telephone Consumer Protection Act continues to be a moving target, but one where the bullseye is only getting bigger and bigger for consumers and plaintiffs attorneys, a trio of experts said during a webinar today.
Next month will mark one year since the Federal Communications Commission issued a declaratory ruling that dramatically altered the TCPA, making it far more consumer friendly and far less collector friendly.
“The incredibly high litigation risk continues, and is escalating one year later,” said Alan Wingfield, a partner with the law firm of Troutman Sanders, which hosted the webinar. “What’s made it all the worse is that important compliance issues are not resolved. It just makes for a very unsettled and risky situation.”
The speakers, which included two other TCPA experts from Troutman Sanders, went through a number of recent court decisions that have had positive and negative impacts on those who use the telephone to contact customers, which includes the collection industry.
The lawyers even warned that companies who claim to make “manual” calls by dialing a telephone can be potentially using autodialers, based on the underlying telephony technology they are using.
“The courts are in different places on this,” Wingfield said. “Some courts focusing on whether a human being is involved in launching calls as opposed to following the hyper-technical definition. That is a ray of light in some of these cases.”
The speakers also discussed the lawsuit, filed by ACA International against the FCC in the D.C. Circuit Court of Appeals, alleging that the agency overstepped its constitutional authority with the declaratory ruling. Oral arguments in that case have not yet been scheduled, even though the suit was filed July 13, 2015. At least one of the panelists thinks that the suit will have some positive impact on how companies can manage their compliance with the law.
“I feel positive about what’s going to happen in the D.C. Circuit,” said Virginia Bell Flynn, an associate with the firm. I think that something will happen to the 2015 order. I’m not sure if it will be enough, though.”
As different courts continue to issue different rulings, it is incumbent on companies to make sure they are managing their vendors to ensure everyone is trying to remain compliant, and companies should continue to work on obtaining, and re-obtaining consent from individuals to contact them on their mobile phones.
“Consent. Get it, confirm it, layer it,” Bell Flynn said. “Consent is the silver bullet.”