TMCnews Featured Article

While it may be out of the eyes of the public, the Telephone Consumer Protection Act, or TCPA, is one of the most frequently litigated-about pieces of legislation in the business world. The TCPA, introduced in the early 1990s and updated and clarified since then, is the collection of laws regarding telemarketing. The act limits the use of automated dialers, prerecorded voice messages (a/k/a “robocalls”), unsolicited SMS or text messages, and fax machines. The Act also mandates that marketers using these technologies provide correct identification and contact information and that consumers have the ability to “opt out” of unwanted messages.

One of the TCPA’s trickiest mandates, however, is the rule against using auto dialers to call cell phones without express written consent of the customer. Auto dialers are widely used by businesses today, and more and more customers are skipping land lines entirely in favor of cell phones. The issue has been extensively litigated in recent years, and the results from courts have been mixed. One of the most important elements on the side of companies engaging in telemarketing today, however, is that the burden of proof is on the plaintiff to demonstrate that the company used an auto-dialer, according to Daniel S. Blynn, Samuel D. Boro and Christopher L. Boone writing for the law firm Venable LLP.

In a case that took place in December (Norman v. AllianceOne Receivables Mgmt., Inc.) the Court of Appeals for the Seventh Circuit upheld a lower court’s decision in favor of a defendant company in a TCPA auto-dialer lawsuit. The reason? The plaintiff was unable to prove that an auto-dialer had been used to make the calls. The defendant, AllianceOne Receivables, insisted that no auto-dialer technology had been used. The company even submitted a call log and a declaration from its vice president saying that the calls were not placed using an auto-dialer. The court held that this evidence was admissible as a business record.

“The plaintiff, however, explained, that when he answered calls from the defendant, he heard a pause, clicking, and dead air,” wrote Blynn, Boro and Boone. “The plaintiff submitted a Federal Communication Commission (FCC (News - Alert)) guide explaining that auto-dialers ‘often’ result in ‘hang ups’ and ‘dead air.’ The district court refused to admit the FCC guide into evidence, ruling that the excerpt was hearsay not within any exception. The court granted the defendant’s motion for summary judgment.”

This wasn’t AllianceOne’s first brush with the TCPA, however. In 2014, the company, together with Capital One (News - Alert) Financial and two other plaintiffs, settled a consolidated class action lawsuit by agreeing to pay $75.5 million in fines and reparations. The plea, which was presented to the U.S. District Court for the Northern District of Illinois, was in response to allegations that the companies illegally used auto-dialer technology to call customers’ cell phones without consent.