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

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.


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