The Times They Are A Changin' (Again): A How-To Guide Regarding Compliance With New FCC Regulations Mandating Prior Express Written Consent

The following fairly unremarkable scenario occurs numerous times every day in countless commercial settings nationwide: a consumer walks up to a cash register to pay for something and, during the course of that exchange, the clerk asks the consumer if he or she would like to receive announcements of certain offers and/or events from the company via text messages and/or calls to the consumer’s cell phone. Often, requests for the consumer to opt-in to a particular campaign are coupled with incentives like a discount off the current purchase. In response to the clerk’s request, the consumer responds “yes,” the clerk memorializes that consent by clicking a box on a customer information screen and the consumer begins to receive text messages or calls periodically.

At first (and likely second or third) glance, this sequence seems rather innocuous. After all, how harmful could it be to send texts to consumers who consent to receive them? However, as of October 16, 2013, this scenario could result in companies being faced with class action lawsuits brought further to the Telephone Consumer Protection Act (“TCPA”), which is the current flavor of the month for plaintiffs’ class action lawyers due to its incredibly punitive liquidated damages provisions of up to $1,500 per call or text and the ability — per the statute — to aggregate individual claims on a class-wide basis.

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