Uber Sued for TCPA Violations Related to Austin Political Campaign

Uber Austin TCPA lawsuit textFor the past several weeks, ride sharing services Uber and Lyft have been waging an all-out communications offensive in support of a ballot proposition that would preserve their status quo driver background check procedures. On May 4 during a press event given by proposition opponents, activists announced they’d filed a complaint against Uber alleging violations of the Telephone Consumer Protection Act, aka the TCPA.

Local CBS TV affiliate KEYE contacted me for comment in their story on the lawsuit, my main contribution being the observations that 1) informational and political messages are not subject to TCPA requirements when direct dialed and 2) Uber’s service agreement includes prior express written consent language for informational messaging.

TCPA and Me

Not earth-shattering news, but who am I to pass up an opportunity to promote my own thought leadership profile?

 

 

 

 

TCPA Update: Great News for Plaintiff Attorneys (Not So Much for Telemarketers)

These days it REALLY sucks to be an autodialer telephone system vendor or a telemarketer that depends on one.

On July 10, the Federal Communications Commission released the long-awaited Declaratory Ruling and Order intended to clarify its controversial interpretation of the Telephone Consumer Protection Act’s autodialer definition. TCPA compliance is a significant issue for telemarketers because the TCPA allows individuals to file lawsuits and collect damages for receiving unsolicited telemarketing calls, faxes, pre-recorded calls or autodialed calls.

TCPA Compliance Nightmares

Sorry, Wrong Number

While the TCPA’s autodialer definitions were under the FCC’s review, some marketers thought they were in compliance if they manually dialed mobile numbers on autodialer systems. The Declarative Ruling and Order removes that fig leaf.

Internet marketing law expert David Klein of Klein Moynihan Turco has this assessment and caution about the FCC’s latest move:

“The ruling solidifies the FCC’s expansive stance that dialing equipment generally meets the TCPA’s autodialer definition, even if it is not presently used for that purpose. The expansive regime labels practically every telemarketing device on the market as an autodialer, subject to regulation under the TCPA.

“The Commission’s latest interpretation of the TCPA autodialer definition is broader than ever before. Accordingly, we advise that companies involved in telemarketing should take precautions whenever using automated technology to place calls or send texts to consumers, or face potential liability under the TCPA.”

Red Meat for Plaintiff Attorneys?

Without proof of consumers’ prior express written consent to be contacted, the TCPA provides for either actual damages or statutory damages ranging from $500.00 to $1,500.00 per unsolicited call/message. To put that in perspective, a Manhattan federal judge recently ordered Time Warner Cable Inc to pay a Texas woman $229,500 for placing 153 automated calls meant for someone else to her cellphone in less than a year, even after she told it to stop.

Now, with all telemarketing calls essentially in play, plaintiff attorneys might be further emboldened to pursue actions against deep-pocket companies. Lawsuits have been filed across many industries, including against social networking companies (Twitter Inc., GroupMe), sports franchises (Los Angeles Clippers, Buffalo Bills), pharmacies (CVS Pharmacy Inc., Rite Aid Corp.), travel and entertainment companies (Cirque du Soleil Co.), retailers (Best Buy Co., J.C. Penney Co.) and online service providers (29 Prime Inc.).

Given the proliferation of TCPA class actions and uncapped statutory damages, it’s not surprising that TCPA settlement amounts are hitting record highs. For example, in February a federal court in Chicago granted final approval for a class action settlement with Capital One Financial Corp. and affiliates totaling approximately $75.5 million.

What Corporate Counsels Can Do: TCPA Compliance Oversight

In TCPA cases, the burden of proof is on the marketer to show it obtained the necessary prior express written consent before making marketing call(s). It’s up to corporate counsels to ensure that their marketing colleagues 1) design web registration forms to ensure that they clearly and conspicuously include proper disclosure of what respondents are agreeing to and 2) have a systematic way to capture and retain that consent for telemarketing purposes.

But your oversight role doesn’t stop there because consent under TCPA is fluid and ephemeral.

  • A called party may revoke consent at any time and through any reasonable means;
  • Called parties can provide and revoke consent multiple times serially, and it’s the marketer’s responsibility to keep track whether the most recent consent is valid;
  • Marketers cannot restrict how potential called parties opt-out; and
  • If the phone number has been reassigned, consent must be obtained from the current subscriber.

How Marketing Automation Technology Can Help in TCPA Compliance

Online marketing software solutions like LeadiD capture “lead generation events,” creating virtual certificates of authenticity for consumer telemarketing consent.

To be on the safe side, lead certification records should be stored for at least four years — the TCPA’s statute of limitations for filing suit.

Proof of internet-provided written consent includes, but is not limited to:

  • Website pages that contain consumer consent language and fields;
  • An associated screenshot of the consent webpage as seen by the consumer where the phone number was input;
  • A complete data record submitted by the consumer (with time and date stamp), together with the applicable consumer IP address.

Services like LeadiD also offer visual capture/playback of the consumer’s interaction with the registration form in question.

More TCPA Tips to Come

As a marketer myself, I’m personally invested in TCPA compliance, so watch this blog for future posts on news, best practices and resources.

Is TCPA a Potential Time Bomb? Ask These Lawyers

In the fall of 1983, the telemarketing world was roiled by the impending arrival of new Telephone Consumer Protection Act (TCPA) regulations. Beginning Oct.16, 2013, prior express written consent is required for all autodialed and/or pre-recorded calls/texts sent/made to cell phones and pre-recorded calls made to residential land lines for marketing purposes. TCPA Terror

That means mortgage lenders, insurance and home security companies and other businesses that generate a lot of telemarketing leads through online forms should capture and store authoritative proof of opt in from every prospect. With penalties for either actual damages or statutory damages ranging from $500 to $1,500 per unsolicited call, violations of those most recent TCPA rules are juicy bait for plaintiff firms.

Nearly two years later, the dreaded tsunami of class action suits hasn’t materialized — yet — and today TCPA is little more than a long tail search term. However, the financial risks of having to defend a TCPA suit are still quite real.

If you haven’t reviewed your company’s TCPA compliance practices yet, there are several lawyers/firms that specialize in the TCPA niche:

Klein Moynihan Turco  — If there’s a dean of TCPA law, David Klein is probably it. His thoughtful curation of the topic on his firm’s blog makes a strong argument in his favor. His post on how to defend your company against a TCPA suit should be a standard starting place for compliance-minded telemarketers.

Ifrah Law — In the past the firm’s Rachel Hirsch has been a visible TCPA subject matter expert at marketing events and in webinars, but the firm seems to be betting more heavily on the iGaming niche.

Drinker Biddle — Kudos to Drinker Biddle for having the good SEO sense to secure the TCPABlog.com URL. As of this writing, the site boasts 27 contributors from the ranks of the firm’s lawyers.

Kelley Drye — Although it only shows up on the inauspicious second page of results in a “TCPA” Google search, the firm’s TCPA FCC Petitions Tracker is nicely laid out (if difficult to read without magnification).

If you haven’t guessed by now, I have a budding interest in how firms large and small are investing in the advertising and marketing of their advertising and marketing practices. Very “meta,” right?