TCPA & Consumer Calling

In an economy where timely and effective communication with both current and prospective customers is vital to the success of nearly every business, modern technology, such as autodialers, recorded and artificial voice messages, text messaging, and e-mail provide companies the ability to reach large numbers of people with increasingly smaller up-front costs. But, companies cannot afford to overlook the hidden costs of using these mass communication methods if the many regulations that govern their use are not carefully followed.

Companies have been hit with class action lawsuits under the Telephone Consumer Protection Act (TCPA) for tens or even hundreds of millions of dollars. Mintz Levin's multidisciplinary team work tirelessly to help our clients understand the ever-changing legal landscape and to develop workable and successful solutions. TCPA rules can apply to certain non-sales calls, such as a recorded call to employees about a new work schedule or a text to customers about a new billing system. We advise on how to set up calling campaigns that meet state and federal requirements as well as how the Federal Communications Commission and the Federal Trade Commission apply their rules on calling, faxing, and texting. Given the uncertainties surrounding the TCPA as a result of the FCC's extensive and confusing rulings, we work with clients across many industries, health care, retail, communications and financial services, on matters relating to the following issues:

Compliance: Our TCPA team routinely advises companies on compliance with federal and state sales and marketing requirements. We also know what type of consumer consent is needed for each type of call and how specific consents must be worded. We know when and how to apply a do-not-call list and when and how an opt-out provision must be afforded.

Consumer class action defense: We've been called upon to handle TCPA class actions across all industries and in federal courts across the nation. Our seasoned litigators know the serial plaintiffs and counsel well and are unfazed by their schemes. Fortunately for our clients, our team has succeeded in winning at the motion stage or earlier in the vast majority of TCPA matters we have defended. That is what truly sets us apart. And if a case must go to trial, we have the experience and strength to follow it to the end.

Insurance coverage disputes: We know the arguments insurers use to deny coverage in TCPA suits because we've defended against them. More important, we have a long track record of convincing carriers to fund the defense of these actions and, in some cases, to pay significant portions of settlements. Our goal is to help secure insurance protection and to see to it that carriers make good on their coverage obligations when a claim arises.

Quick Facts

  • Full-service practice representing businesses and nonprofit entities in ensuring compliance with mass communication by predictive dialing, autodialing, text messaging, fax, and e-mail
  • Focus on federal, state, and local regulatory issues
  • Represent clients before Congress, Federal Communications Commission, Federal Trade Commission, and federal and state courts
  • Defend clients against individual and class action suits alleging violation of the TCPA or other federal or state calling laws and regulations

Areas of Focus

  • Regulatory obligations associated with mass communications, including predictive dialing, autodialing, text messaging, fax, and e-mail
  • Application of the provisions of the Telephone Consumer Protection Act (TCPA), Federal Communications Commission rules implementing the TCPA, and the Federal Trade Commission's Telemarketing Sales Rule (TSR)
  • State telemarketing, mass calling statutes and rules, and their interaction with FCC and FTC rules
  • Assisting clients in promoting calling regulation policy changes before Congress, the FCC, and state commissions
  • Defending clients in lawsuits alleging violation of the TCPA or other federal or state calling laws and regulations

Representative Experience

  • Provide regulatory advice to a large health care company on proposed calling campaigns to patients, including on the intersection of TCPA regulations with HIPAA privacy rules.
  • Provide ongoing regulatory advice to a major national retailer about compliance for calls to customers and prospective customers about special offers and general sales information.
  • Provide ongoing regulatory advice to a major cable operator about compliance for calls to its subscribers about new offerings and changes to existing products.
  • Provide ongoing regulatory advice to a large regional electric utility about compliance for calls to its customers, including calls urging energy conservation and calls advising on the status of storm-caused outages.
  • Provide ongoing regulatory advice to a large provider of recorded calling and text messaging services to large banks, Fortune 500 companies, and other companies undertaking major calling campaigns.
  • Represent a large calling service provider in rulemaking proceedings at the Federal Communications Commission and at the Federal Trade Commission.
  • Defend a pharmaceutical company in a class action alleging that invitations faxed to health care providers concerning a free educational seminar violated the TCPA.
  • Obtain dismissal of TCPA class action against a PPO network administrator alleging that informational communications faxed to network providers were unsolicited advertisements in violation of the TCPA.
  • Achieved dismissal of TCPA class action claims on behalf of the following clients: Sabre Inc., The Los Angeles Lakers, Inc., Windstream Holdings, Inc., AMC Entertainment, Inc., Yelp Inc., Hooters of America, LLC, and H&R Block, Inc.
  • Represented an e-commerce company in a TCPA litigation. We served discovery responses and requests, which evidenced that the plaintiff had purchased products and continued to use those products from our client. Under the fax provisions of the TCPA this fell within the established business relationship exception, and plaintiff voluntarily dismissed the claims thereafter.
  • Defeated class action claims at the motion for summary judgment stage in a national class action in which plaintiffs alleged that our client, a seller of customer care and billing services, had planned and executed national sales campaigns for retailers, and that those campaigns involved the illegal use of autodialers. Plaintiffs' lawyers, in several other similar class actions, defeated numerous defense motion attacks on the same claims asserted against our client. We, by contrast, innovated and articulated new arguments attacking plaintiffs' claims. The court adopted our arguments and dismissed all of plaintiffs' claims with prejudice.
  • Handled a number of TCPA cases on behalf of a global telecommunications company in which we prevailed at the class certification stage based on inherently individualized issues.
  • Sabre Inc.
  • The Los Angeles Lakers, Inc.
  • Windstream Holdings, Inc.
  • AMC Entertainment, Inc.
  • Yelp Inc.
  • Hooters of America, LLC
  • H&R Block, Inc.