Conflicting Decisions Cloud TCPA: Caution Is the Safest Route

Becky Burr

Could the complexities of complying with the Telephone Consumer Protection Act possibly get even more challenging?

First, on October 16 this year, new regulations implementing the Telephone Consumer Protection Act (TCPA) took effect, prohibiting the use of an auto-dialer in outbound telemarketing calls and texts to a mobile telephone without the prior express written consent of the called party.

As if that were not enough, several contradictory court judgments have been handed down over the last few months, creating even more confusion in the industry.

Conflict for Collections

For example, a federal judge in Pennsylvania, in Roy v. Dell Financial Services, recently ruled that the TCPA does not apply to debt collection calls, even when those calls are made to a mobile phone.

So can collection companies safely dust off their auto-dialers and dump their protections against dialing mobile phones without express written consent?

Hardly! The decision in Roy has already been appealed, although the appeals process could take many months.

Moreover, in a case decided by a federal judge in Illinois in May 2012, Soppet v. Enhanced Recovery Company, LLC, a collections company was held liable under TCPA for debt collection calls made to cellular phones without the express prior consent of the called party. Other courts have also determined that debt collection calls fall under TCPA.

Which is it? Only time – and additional court decisions – will clear up this confusion.

Best Practice… Meanwhile

Some businesses, weary of the challenges of complying with the TCPA, may be tempted to relax their standards.

I want to be clear that this blog post is no substitute for qualified legal advice.

For me, however, the choice is obvious: Even if judicial decisions do end up achieving reasonable consensus on sensible clarifications for some of the restrictions of the TCPA down the road, you probably do not want to be involved in any of the lawsuits that help produce that consensus.

The risks are simply too great, the expenses too high, the outcome too uncertain. Caution is still the safest route, so taking steps to mitigate your TCPA Risk (like knowing who you are calling or texting) using resources like those Neustar provides is still best practice.

Becky Burr is Neustar‘s Chief Privacy Officer and Deputy General Counsel. She is a founding member of the board of directors of the International Association of Privacy Professionals.