On September 16, 2018, TCPAland’s own Czar, Eric J. Troutman, and the “Kingmaker” Jeremy S. Gladstone, Assistant General Counsel and TCPA Subject Matter Expert at Capital One, spoke at the MBA’s Regulatory Compliance Conference in Washington, D.C.
It was a sight to behold. In the presentation, Eric and Jeremy distilled the utter chaos of TCPAland into three important hot topics. They discussed:
- Whether predictive dialers and dialers that call from a list still covered by the TCPA post ACA Int’l?
Hint: There are at least five schools of thought on what to do with predictive dialers following the ACA Int’l decision (ACA Int’l v. FCC, No. 15-1211, 2018 U.S. App. LEXIS 6535 at *9 (D.C. Cir. Mar. 16, 2018)). As attorneys, you should really read up on the district where your case is pending. Things vary from state to state and you cannot rely on a single “trend” with respect to predictive dialers. If you are in-house, you should tread carefully and act conservatively.
- What is new with express consent and revocation these days?
Glad you asked. A big focus here is the issue of scope of consent. For example, after the ruling in Benedetti v. Charter Communications, No.1:16-CV-2083 RLM-DLP, 2018 WL 2970998 (S.D. Ind. June 13, 2018) (Original Blog Post Here), companies need to worry about liability for violating secret limitations placed on consent. Also, beware of dual purpose calls in the event that you have consent for one purpose but not the other.
For telemarketing, express written consent is needed. Contractual consent is enforceable. However, in the absence of contractual consent or a revocation clause, consent can be revoked by any reasonable means. ACA Int’l strongly suggests that a caller can “reasonably rely” on the consent of a former subscriber for some unspecified time frame. Case law has not addressed this issue yet.
ACA Int’l also notes that imaginative means to revoke consent are likely not “reasonable.” To opt-out, a person must “clearly and expressly” request messages to stop. Thus, Opt-out evaders – in other words, people who craft wordy opt-out responses that could be construed to revoke consent but that do not explicitly revoke it – have faced a tough road lately. It is not clear what the FCC will do, if anything, to standardize revocation/opt-outs.
- What is the future of the TCPA both in terms of new suits and likely changes to the law?
We see an uptick in class litigation concerning Do Not Call (“DNC”) violations. I discussed it in detail here and I encourage you to review it. For quick reference remember: before making any calls, you must have a written DNC policy in place. And, even if you have an existing business relationship with the consumer they can opt-out of calls. You have to honor the opt-out for at least 5 years and you have to keep an internal opt-out list.
Otherwise, be patient. Post ACA Int’l, the FCC sought comments on several TCPA issues. Eric blogged about it right here. As a result, the FCC is considering and will likely rule on issues such as what constitutes an automated telephone dialing system and how the FCC should handle reassigned telephone numbers.
There is also a “Stopping Bad Robocalls Act” on the Hill. It is unclear if it will pass, but a red line version is available on TCPAland.com or by clicking here.
If you would like to learn more, contact us and we’d be happy to provide a complete set of slides from Eric and Jeremy’s MBA presentation – they are without the witty banter, but with important case cites and tips for best businesses practices as we await the FCC’s ruling.
Finally, no one who’s ever met Eric in real life would ever question his fervor for all things TCPAland. To the rest of you, I leave you with this: In lieu of his name, Eric’s conference name tag said, “Hello my name is: Czar.” If that isn’t dedication, I don’t know what is.