As much free content as we pump out it seems like we are always somehow missing certain segments of TCPAWorld when we address issues. Sometimes even when we address them repeatedly.

I have a few minutes this late-morning Friday so I figured I’d provide answers to some of TCPAWorld’s most asked questions all in one place.

1. Will the FCC’s new one-to-one rule really take effect on January 26, 2025? 

Easy–yes. 

Although there are some potential modifications to the rule to protect small business, the core of the one-to-one rule will take effect January 26, 2025.

This is true even if Trump wins the election. A change in staff at the FCC wouldn’t take place for months after inauguration–and even once that happens it would take months for any change to the rule to be implemented (and it likely will not happen regardless.)

So, yes, the new one to one rule really will go into effect January 26, 2025. And that means you need to start building compliant leads into your pipeline NOW.

2. Are ringless voicemail subject to the TCPA?

Yes.

My goodness, it is bizarre I still need to keep answering this one. But there is still a lot of misinformation out there.

Every court to look at the issue has held ringless voicemails are subject to the TCPA. I consider this to be a settled issue. This means you must have express written consent to use RVM for marketing purposes and express consent to use RVM for informational purposes.

3. Are AI voice messages subject to the TCPA?

Yes. 

The FCC has directly held AI generated voice messages qualify under the TCPA. This means you must have express written consent to use AI for marketing purposes and express consent to use AI for informational purposes, except to landlines. In the case of landlines you can use AI for informational purposes up to 3 times per month without consent.

Further there are currently no AI disclosure requirements at the federal level but that is likely to change soon as both the FCC and Congress have proposed rules requiring disclosures of AI usage in telephonic communications (text and voice channel.)

4. Does the TCPA apply to B2B calls?

Mostly yes, but a little no.

The TCPA has to different components–one governing telephone solicitations to numbers on the DNC list and one governing the use of regulated technology.

With respect to the use of regulated technology (ATDS calls, prerecorded calls, artificial voice calls, AI voice, RVM, outbound IVR) the TCPA DOES APPLY to B2b calls to cell phones as the TCPA governs calls to ANY cellular phone regardless of the purpose of the call.

As to calls to numbers on the DNC, the TCPA DOES NOT APPLY to business numbers, however the purpose of the call does not determine liability. Instead the number called FACTUALLY must be used for business purposes. And in some jurisdictions numbers on the DNC list are presumed to be residential in nature–so callers must have firm evidence the number is used for business purposes before attempting calls without consent.

5. Can Employees/Business Owners Be Personally Liable for TCPA Violations?

Unfortunately, yes.

The majority of courts hold that individuals who are “personally” involved with a TCPA violation can be held individually liable for those violations even if they are taken in the course of employment. So call center agents, dialing managers, campaign managers, marketing executives and even the CEOs of companies can be held personally liable for violations of the TCPA they are involved with,

This is contrary to the general rule of “piercing the corporate veil”–but those requirements do not apply to the TCPA in the view of most courts.

This makes the TCPA a particularly dangerous statute and makes the need for outside counsel and wise TCPA guidance critical.

6. What is an Autodialer under the TCPA?

A device that has the capacity to store or dial phone numbers using a random or sequential number generator.

What does that really mean? No one knows for sure but most dialing systems DO have this capacity.

After the U.S. Supreme Court decision in Facebook there has been ongoing debate regarding the scope of the TCPA’s ATDS definition. In Facebook the Supreme Court confirmed that a randomizer or number generator must be in use by a dialer to qualify as an ATDS, but debate rages in terms of what that ROSNG must actually do. 

The majority of courts to look at the issue have now held that the ATDS must actually randomly or sequentially generate phone numbers to qualify as an autodialer under the TCPA. However this interpretation seems to be at odds with the express language of the Facebook decision, and particularly fn7.

Specifically the Supreme Court held a device qualifies as an ATDS if it either stores or produces numbers to be dialed using an ROSNG. So decisions limiting the statute to systems that only produce numbers appear to be erroneous. Still decisions in the Ninth and Second Circuit Courts of Appeal are binding on the issue until the U.S. Supreme Court takes up the issue anew.

7. What qualifies as marketing under the TCPA?

Under the TCPA marketing “means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”

This can sometimes be a very difficult test to apply–particularly in the context of “dual purpose” calls; i.e. where a call is made both to inform and to engage consumers (or businesses) in discussion regarding goods or services.

For instance a call to “inform” consumers that interest rates have dropped might seem like an informational call, but courts will use “common sense” to interpret the call as having been initiated for the “purpose” of encouraging a purchase even if the content of the message does not so provide.

On the other hand calls to offer to purchase property or to offer a job are generally NOT considered marketing–they do not promote the sale or rental of any goods– but be careful because some courts will find that even these calls are marketing if the pecuniary benefit of the call is clearly in favor of the caller and not the consumer.

8. What is a “dark pattern” for TCPA purposes and why does it matter?

A dark pattern is any feature of a website or consumer journey that is designed to trick or deceive the consumer into choosing options that are more favorable to the business and less favorable to consumers.

In the TCPA context the most common dark patterns involve webforms that trick consumers into provide express written consent under false pretenses. For instance promising “free online quotes” when the consumer is really just providing consent to be called by third-party companies to pitch their wares and no free quotes are actually provided.

Another example is large bold face calls to action that are favorable to the business with much smaller (or nearly invisible) paths a consumer can take to receive the same benefit with less strings attached.

Dark patterns are generally found to defeat consumer consent and can constitute a violation of the Telemarketing Sales Rule resulting in massive fines from the FTC.

9. Why is there so much confusion about the TCPA and what it applies to?

Given the massive statutory penalties available under the TCPA the statute drives a tremendous amount of litigation in federal court leading to myriad judges across the nation interpreting the statute in patchwork fashion.

Unlike most bodies of law–particularly federal law–that are fairly static, therefore, the TCPAWorld moves extremely quickly with new decisions out almost daily. Plus the FCC and Congress routinely tinker with the statute–which is the federal government’s crown jewel response to the robocall epidemic– and its dense regulations requiring careful attention to be paid.

As a result of the high-stakes and fast-paced environment very few lawyers are qualified to provide competent advice in the TCPAWorld. So be VERY cautious who you retain to provide TCPA and marketing related legal advice. Always be sure they are highly experienced.