From the Court House: VoIP Not Exempt from TCPA
February 14, 2014
By Michelle Amodio
, TMCnet Contributor
A quick Google (News - Alert) search of the Telephone Consumer Protection Act of 1991 (TCPA) will certainly yield a lot of court cases. The basic premise of the TCPA is designed to, as the name states, protect the consumer who would be on the receiving end of marketing or soliciting phone calls. Many people know the “do not call” list, and it’s thanks to the TCPA that we have this.
Other important provisions of the TCPA include a ban on autodialers and artificial or prerecorded voice messages programmed to call any emergency phone lines, pagers or cellular phones, or a call for which a charge is made to the calling party, as well as requirement that anyone using an autodialer or an artificial or prerecorded voice message to call any number state the identity of the caller at the beginning of the message and give the address and phone number of the caller during the call.
If you have caller ID, a telemarketer is required to transmit or display its phone number and, if available, its name or the name and phone number of the company for which it is selling products.
One unique case that recently made headlines was Clark v. Avatar Techs PHL, Inc., in which the plaintiff alleged that the defendant used a VoIP service that allowed it to circumvent caller identification by causing an inaccurate number to be displayed.
The plaintiff asserted claims against both Avatar Technologies (the caller) and Flowroute, LLC (the VoIP provider).
The court found that the vender of the VoIP service is not secondarily liable for the caller’s claim of TCPA violation.
According to court documentation, “Plaintiff alleges summarily that Avatar and Flowroute conspired to violate the TCPA. Plaintiff, however, cites no legal authority that supports the application of a conspiracy theory to impose liability under the TCPA. The United States District Court for the District of Maryland rejected a similar attempt to impose TCPA liability on a party that did not “make any call.” In that case, the district court noted that a statute under which a private plaintiff may sue and recover damages from a private defendant generally includes no presumption that the plaintiff may also sue aiders and abettors. This is true because “Congress [knows] how to impose aiding and abetting liability when it [chooses] to do so.”
The court allowed the plaintiff to amend the complaint to assert an independent claim under Section 227(e), which makes it unlawful "to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value."
It is obvious that the TCPA needs some amending, as technology has come a long way since 1991. Recent cases have led to the FCC (News - Alert) going back to the drawing board to better define some of the misunderstood rulings under its jurisdiction. Of note are cases that deal with predictive dialing and consent from recipients.
In a Federal Court case in Wisconsin, Nelson v. Santander, it was said that a debt buyer called the plaintiff on a mobile phone more than 1000 times. The defendant raised several defenses, including that some of the calls were made in dialer preview mode.
The Court maintained that, because the calls to the plaintiff were made through the dialer, ultimately, the defendant violated the TCPA. It is not clear if consent to receive calls can be revoked. The FCC’s CPA Report and Order simply says “persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary.”
Given that call centers, marketing firms and businesses rely on VoIP and predictive dialers to reach out to their lead lists, maintaining compliance is key to avoiding hefty fines.
The confusion still lingers, though and likely will do so for a bit longer as the FCC irons this all out. It is best for companies to keep close tabs on the developments in this particular field of customer engagement as it happens.
Edited by Alisen Downey