Litigation over Telephone Consumer Protection Act (TCPA) violations continues to rise, fueled in part by an increase in companies using software-driven text message and mobile app communications to reach consumers. Companies in nearly every consumer-facing industry, from health care to retail to entertainment, are defending against nationwide class action claims seeking millions of dollars in alleged damages arising out of mobile marketing and customer service practices. Businesses are ensnared by a confusing regulatory landscape, rapidly evolving communication technology and social media, and often-conflicting case law, depending on the jurisdiction, court and even judge presiding over the matter.
The TCPA was enacted in 1991 to protect consumer privacy by prohibiting unwanted telemarketing calls, autodialed or prerecorded calls, and unsolicited faxes. But technology has changed significantly since Congress first considered the statute and the ills it was designed to cure. For example, the near-universal adoption of cellphones—which often replace landlines as the preferred, if not the sole, method of communication for consumers—has resulted in an outdated regulatory scheme that presents serious risks for businesses using the most popular and effective way to reach their consumer base: texts and mobile app communications.
