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Litigation Increasing Over Unsolicited Calls and Texts to Wireless Phones

on Monday, 23 January 2017 in Technology & Intellectual Property Update: Arianna C. Goldstein, Editor

Federal and state laws weave a complicated web of rules governing business calls to customers. The FCC’s and FTC’s broad interpretations of the Telephone Consumer Protection Act (“TCPA”), along with technological advances in telephone services, have led to increased litigation arising from autodialed calls and texts to wireless phones.

The TCPA forbids using an automatic telephone dialing system (“ATDS”) to call or text wireless phones unless the called party has given prior written consent. The FCC has adopted a broad definition for ATDS, potentially including any VoIP system or equipment that is connected to a computer. In fact, the FCC’s only clear example of what is not an ATDS is a rotary-dialed phone.

The issue has become complicated by customer trends to change numbers, move numbers from landlines to wireless phones, or drop landlines entirely. This creates two common traps for businesses: 1) autodialing a number believed to be residential but has in fact been ported to a wireless phone; and 2) autodialing or texting a number once associated with prior consent, but since transferred to a different person who has not given consent. Either scenario could trigger strict liability under the TCPA, and penalties can be as high as $500 or $1,500 per call or text. Furthermore, five states have penalties for even manually dialing wireless numbers (Arizona, Louisiana, New Jersey, Texas, and Wyoming).

The FCC has been considering updating TCPA regulations, and a May 2016 Senate committee investigated the effectiveness of the TCPA for its 25th anniversary. Until the regulations change, however, businesses must take care to ensure they do not autodial or text wireless numbers without express prior consent of the called party.

The portability of wireless numbers, coupled with the FCC’s broad interpretation of what is an ATDS could lead businesses to adopt a policy of never calling or texting wireless numbers. However, this requires current and accurate information about the status of every number, and the pool of residential numbers continues to shrink.

Federal and state laws do at least offer safe harbors for one-time, good-faith mistakes, provided companies have robust internal policies and training. The policies must include maintenance of internal do-not-call lists and immediate addition of numbers upon request of called parties.

A best practice could be to dial wireless numbers only manually from legacy wireline systems, which are in no way connected to any computer or VoIP systems. However, this is an expensive approach because it likely requires maintaining multiple phone systems. Regardless, companies must be aware of the five states (Arizona, Louisiana, New Jersey, Texas, and Wyoming), which do not allow even manually dialing wireless numbers from legacy systems. As a result, companies should investigate purchasing third-party services that keep updated lists to identify which numbers are wireless and which numbers have been ported from landlines or reassigned to new customers. It is also important to maintain robust internal policies and train employees accordingly.

Justin W. Firestone

1700 Farnam Street | Suite 1500 | Omaha, NE 68102 | 402.344.0500