In recent years, the number of private actions filed under the Telephone Consumer Protection Act (the “TCPA” or the “Act”) has risen sharply, but perhaps more concerning is that litigants are using the Act to target an increasingly broad range of industries. Companies that violate the TCPA’s always-changing and often confusing provisions, which both the FCC and private litigants may enforce, are liable for up to $500 per violation and up to $1,500for each violation found to be willful. Because there is no cap on these statutory fines, the potential damages in a class action based on a less-than-careful, large-scale telemarketing campaign can easily climb into the tens of millions of dollars. In one recent and noteworthy example, Capital One and other defendants agreed to pay $75 million to settle a class action alleging TCPA violations—the largest settlement of its kind. There are very good reasons to be concerned.

Originally passed in 1991, the TCPA regulates telephone solicitation and restricts the use of automated telephone dialing systems, artificial or prerecorded voice calls, unsolicited faxes, and text messages. As interpreted by the FCC, the primary agency responsible for interpreting and enforcing the Act, the TCPA requires telemarketers to obtain “prior express written consent” before calling or sending text messages to wireless numbers. The consent requirement has been applied strictly, and courts no longer excuse this requirement based on the existence of an established business relationship with the consumer. Further, with some exceptions, any consent associated with a cell phone number does not survive a reassignment of that number.