TCPA litigation hit an all-time high in 2016, breaking 4,000+ cases through October, increasing 80% YTD. This unbelievable growth in TCPA lawsuits since 2007 is evident in the chart below with no indication of slowing down in 2017.
In conjunction with this unprecedented number of cases is the cost of TCPA settlements, one of which also hit an all-time high of $76 million this year.
Are there lessons learned in the past year that can be applied to TCPA risk mitigation strategies in 2017?
In two recent webinars, “Fortify your TCPA Defenses” and “Technology for Effective Defense”, TCPA legal counsel from Manatt, Phelps & Phillips, from Drinker Biddle, and from LiveVox provided some insight on the topic in the highlights below.
A Multipronged Approach is Key to Increasing Your Chances of a Favorable Outcome
While the phrase “Consent is King” remains true in mitigating your TCPA risk, it is crucial that it not be the sole element of your TCPA defense. This has become even more pressing in view of the FCC’s 2015 Declaratory Ruling, which broadened when and how previously validated consent can be made invalid at virtually any time and by “any reasonable means.”
In addition, plaintiff attorneys are actively attempting to find vulnerabilities in both consent AND the technology used.
In an era when valid consent cannot be guaranteed indefinitely, determining whether or not the technology used is an Automatic Telephone Distribution System (ATDS) is another key consideration.
Therefore, when looking ahead to 2017, businesses should be cognizant of developing a multipronged TCPA defense strategy that encompasses not only consent, but also technology.
To Be or Not to Be an ATDS…………
If Lesson 1 can be summarized simply as, “Do not put all your eggs into one basket”, Lesson 2 covers what to look for to diversify your risk exposure when evaluating technology:
If consent is found to be invalid, the potentially-million-dollar question boils down to whether or not the technology you use to launch a call to a mobile phone can be considered an ATDS.
So…. What lessons did we learn in 2016 about factors courts consider in the definition of an ATDS?
There are three main facets of a dialing technology that the courts have considered in determining an ATDS: Human Intervention, potential capacity to autodial, and separation between a manual and an automated system. Here are some of our take-aways from 2016:
- Human Intervention may be considered sufficient if there is a “single-click” preceding each call;
- Courts have not bent over backward to find “potential capacity” where it is not already apparent
- The presence of other forms of automation within the larger ecosystem will not necessarily render the dialing system to be an automated dialing system.
There have been several rulings that help support these take-aways, including the 2016 Pozo vs. Stellar Recovery ruling which can be found here.
If one were to consider technology as an investment, these take-aways can be used to help guide the initial and ongoing assessment of how technology can be used to help your TCPA defense.
What to Do If/When You Are Presented with a Claim
The third and final lesson we can draw from these webinars covered what to do if and when you find yourself facing a TCPA claim . From the discussions, we distill these best practices.
- Be prepared with answers – one should have a well thought out TCPA defense / response prior to receiving a claim. It is important to not wait until the last minute to understand your operations strengths and weaknesses in terms of TCPA risk exposure
- Leverage legal expertise – Utilizing counsel well-versed in TCPA litigation and its players is important in avoiding potential land mines in your defense approach. It is also critical to leverage knowledgeable resources that understand key facets that may impact your risk exposure, such as technology. Whether an organization uses in-house systems or an outsourced solution, those that know the technology can be helpful in your defense strategy.
- Conduct ongoing assessments – The legal environment remains in flux. What may be low-risk now may be higher risk in six months. It is a best practice to conduct an assessment of your TCPA defense strategy (of both consent and technology) at least twice a year. Processes such as TCPA audits can be conducted to help in that assessment and are offered by knowledgeable legal counsel.
Uncertainty and ambiguity regarding the TCPA persists as we approach 2017. However, leveraging the developments of 2016 can help provide businesses with practical approaches to improve their overall risk exposure in the coming year.
If you would like to review the webinars mentioned or would like to speak with one of the speakers mentioned in the webinar, you can do so by clicking here.
***This blog does constitute legal advice. We urge our readers to consult with their own experienced legal counsel to independently review the topics covered on today’s event and independently evaluate any compliance measures they undertake.