In 1991, Congress enacted the Telephone Consumer Protection Act to protect consumers from unwanted calls. This provision prohibits the use of autodialers or artificial or prerecorded voice messages for calling, among others, telephone numbers assigned to cellular services. In 1992, the TCPA was updated by the Federal Communications Commission by adopting the same policy that prohibited the use of any telephone fax machine, computer or other device to send an unsolicited ad to a telephone fax machine. This ruling is also further recognized the liability of companies or individuals that “demonstrate a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such facsimile transmissions.”
Now that times have evolved to newer technologies and ways of marketing, the FCC has to constantly update its stances on communications between companies and the public. The ever expanding transparency of information that is shared between multiple companies allows for outside firms to buy into information about the public by prompting these individuals to sign contracts or agree to terms that generally not one person reads. These companies know that and capitalize on it by spamming, robocalling and now autodialed text messaging.
FCC Denies Liability Protection to Text Broadcasters
Club Texting, is a mass texting platform that businesses use to reach customers and members. Club texting petitioned for a declaratory ruling asking the Commission to clarify that, consistent with the treatment of fax broadcasters, text broadcasters are not “senders” of text messages but rather they act as a “[channel] operating platform that enables message delivery.” The company states that it provides “a self-service text messaging marketing service by licensing its clients to use a software platform that they can use to contact their target audience via text message.” Therefore, they wish to be treated like fax broadcasters whereby they cannot be found liable for unsolicited messages when they provide text messaging service on behalf of their clients. They would be found liable only if and when a text broadcaster, “demonstrates a high degree of involvement in, or actual notice of, the unlawful activity and fails to take steps to prevent such transmissions.” By following this suggestion by companies like Club Texting, the liability would fall on the third-part client who are truly in the best position to ensure that recipients have consented to receive the text messages in the first place.
Upon public commentary about the pros and cons of letting the company play by the same rules as fax broadcasters, the FCC ultimately denied the petition, ruling that text broadcasters can be liable for TCPA violations based on the determination about who “makes” or “initiates” a particular robocall or in this case, an autodialed message. This is due to the fact that a party or client has to take the “steps necessary to physically place” the call and the extent and nature of the involvement by others, including the provider of the calling platform used to make that call, aka Club Texting. Thus, in 2016, The FCC denies text broadcasters to fall under the same liability protections as fax broadcasters .
So What Does This Mean For You?
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This ruling is consistent with two decades of policy promoting consumer protections from “harassing, intrusive, and unwanted robocalls by adopting and enforcing rules that implement the protections afforded to wireless consumers under the TCPA,” the FCC said to Bloomberg BNA. This ruling even extends to individuals who may be accused of violating a company’s policy.
For example, as of late, Warner Bros. Home Entertainment and other defendants have agreed to pay out $450,000 to thousands of alleged music pirates. According to a class-action lawsuit that was filed in November 2014, Warner Bros. and other leading entertainment giants, including the very well-known music industry giant BMG Rights Management and copyright enforcement company Rightscorp, violated the Telephone Consumer Protection Act by autodialing accused music pirates without getting their prior expressed consent, as required by law.
These accused pirates claim that Warner Bros. and the other big companies hired Rightscorp to make these pre-recorded calls demanding payment for suspected copyright violations. Rightscorp contacts these alleged music pirates by offering them low-costing settlements, hoping that these individuals will pay rather than go through the legal system, costing both the accuser and the accused a lot of money. However, by using pre-recorded phone calls without the receiver’s permission goes against the TCPA.
As such, the plaintiffs accused Warner Bros. and BMG of being liable to Rightscorp’s actions because the companies allowed these robocalls to happen. After various motions and months going through the court system, the judge decided to let the case be handled in mediation. In the end, Warner Bros. and all other parties affiliated got away with only paying $450,000 to all of the defendants involved. This is only a small fraction of what the defendants originally called for. The original claim requested penalties for TCPA violations whereas the companies would pay $500 per negligent violation and $1,500 per intentional robocall. By settling it out of court, the companies didn’t have to admit to any misconduct and got off with a pretty cheap fine . Hopefully the penalties were decent enough for the companies and Rightscorp to not use robocalls.
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Thankfully for the public, the FCC is stacking up to be pretty strict when it comes to newer technologies and the law. People’s privacy and livelihood are at stake when autodialers, robocallers or text messaging broadcasters repetitively use people’s information and relentlessly contact victims in order to gain monetary compensation or responses. That is why the FCC set up the Do Not Call List to stop violators from disrespecting the law. If you wish to be excluded from unwanted calls or messages, please add your number to the list.
However, if you are receiving any calls that you want stopped, call Dolman Law Group Accident Injury Lawyers, PA today for a free case evaluation. Be proactive and start putting a stop to the harassment today. For more information on how you can use the TCPA to your benefit, call the experienced consumer rights lawyers at Dolman Law Group Accident Injury Lawyers, PA. Call us today at (727) 451-6900 for a free consultation.
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