TCPA QUICK HITTER: Yes, Prerecorded Calls Are Actionable Even if They Aren’t Marketing

Add a comment

Ok, so some TCPA basics this morning.

The TCPA has two primary provisions that lead to most of the lawsuits out there. First, you cannot use regulated technology–ATDS and prerecorded/artificial voice calls–to contact a cell phone without express consent. Second, you cannot make solicitations (marketing calls) to residential numbers on the DNC without express consent–even if the calls are made manually.

For some reason people confuse these rules from time to time. They think, for instance, that you can make B2B calls using regulated technology. Nope.

Or, for instance, that you can make prerecorded calls as long as they don’t contain marketing. Again, nope.

On that last piece the court in Duverger v. Rsch. Strategies, Inc., CASE NO. 21-CV-62465-RAR, 2022 U.S. Dist. LEXIS 57529  (S.D. Fl.  March 29, 2022) made short work of a Defendant’s motion to dismiss a prerecorded call claim.

The Defendant had argued that the calls were not actionable because they were not marketing in nature. But the Court correctly determined that any prerecorded call to a cell phone triggers the TCPA if made without express consent.

Hopefully all of my gentle TCPAWorld readers know this already but–just in case–ALL prerecorded calls to cell phones must have express consent. Informational calls can be made without WRITTEN consent, but consent is still required.

Categories:

Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

Leave a Reply