2 Litigation Trends Offer Guidance On TCPA Compliance

$76 million, $14.8 million, $12 million and $3.7 million. These numbers represent some of the Telephone Consumer Protection Act settlement agreements negotiated in 2017. As shown by these numbers, TCPA litigation continues to be a leading litigation risk for corporate America. Recently, several courts have begun to take a hard look at TCPA compliance issues and their decisions offer useful guidance, which may help companies avoid traps for the unwary that may lead to large TCPA penalties.

Two developments in particular stand out. First, courts across multiple federal judicial districts have provided new guidance concerning when telephone equipment qualifies — or does not qualify — as an automatic telephone dialing system (ATDS). These courts have not been as expansive as plaintiffs would like when determining what qualified as an ATDS. These courts have also provided clearer guidance on the level of manual intervention needed in order for a system to not be classified as an ATDS. This article focuses on a few cases that have taken the position that if a person manually initiates the call and the telephone or other dialing system has no other current configuration to allow the person to autodial, then a strong argument exists that the equipment is not an autodialer. Second, courts have placed some limitations on a consumer’s ability to revoke consent to receive marketing and information phone calls via autodialers, including what methods of revocation may be unreasonable.

Originally published in Law360; reprinted with permission.