Telephone Consumer Protection Act attracting more litigation

80 percent of all federal TCPA cases have come within the past five years

Congress passed the Telephone Consumer Protection Act (TCPA) in 1991 to cut down on unsolicited and expensive home calls from telemarketers. But it’s only in the past five years that the act has been used en masse as a major play for lawyers.

According to a Wall Street Journal (WSJ) search of court records, roughly 80 percent of all TCPA cases filed in or transferred to federal court since the act’s inception have occurred within the past five years. That includes 226 TCPA cases in to date 2013, the first time federal courts have seen over 150 TCPA cases in one year.

It’s no surprise that TCPA suits are going sky-high; the Federal Communication Commission announced that TCPA enforcement would be one of its top priorities in 2013. But it’s not just the government that is going after these companies. Many attorneys are also hopping on the bandwagon due to high settlements.

In late 2012, Papa John’s settled a $250 million suit over excessive spamming. Bank of America and Jiffy Lube have also paid high dollar amounts. The 7th Circuit even recently forced a private practice attorney to pay $4 million over his excessive faxes advertising his services.

 “When you bring a case and somebody ends up settling, I guess you think, 'Ah, maybe there's something here,’” consumer law protection lawyer Joshua Swigart of Hyde & Swigart told the WSJ.

Cases against debt collectors may be the newest driving force behind this trend. Consumer rights attorney Jay Edelson told the WSJ that TCPA cases are generally easier to prove than those filed under the Fair Debt Collection Practices Act. “There tend not to be a lot of defenses,” he said. “My client got 500 calls. Show me the consent, and either they do or they don't. And if they haven't, they probably haven't for a lot of other people.”

And even better for attorneys, new regulations may push the number of potential TCPA cases even higher. Industry experts are expecting new telemarketing regulations that would require companies to obtain consumers’ written consent before placing robocalls to cell phones.

In recent changes, the Federal Communications Commission also announced that it was eliminating an exemption that allowed telemarketers to place prerecorded calls to residential lines belonging to consumers “with whom the caller has an established business relationship.”

 

For more on the TCPA, check out these InsideCounsel stories:

New robocall regulations likely to spark deluge of litigation

7th Circuit says lawyer is liable for faxing “mundane advice”

Watch the gap: Steps to avoiding cyber risk

Statutory damages for alleged breaches of privacy statutes can be covered by insurance

Contributing Author

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Zach Warren

Zach Warren is Assistant Editor of InsideCounsel magazine, where he oversees online content submissions and administers InsideCounsel's enewsletters. Zach specializes in new media and multimedia...

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