Before wireless telephones became ubiquitous, the Telephone Consumer Protection Act (TCPA) was a minor compliance issue for most companies. Today, however, the TCPA is a major litigation risk for companies in a variety of industry sectors. With regulators, courts and plaintiffs' class action attorneys all targeting TCPA violations, businesses should review their practices and stay apprised of the latest legal developments—especially when using predictive dialers, prerecorded messages, text messages and other technologies to interact with consumers on their mobile devices.

Passed in 1991, the TCPA imposes a series of restrictions on outbound communications, including voice calls and fax transmissions. Two provisions of the decades-old statute have become increasingly problematic for companies. First, the TCPA prohibits callers from using an “automatic telephone dialing system” (an autodialer) or a prerecorded or artificial voice message to call, inter alia, wireless telephone numbers, absent an emergency or the “prior express consent” of the called party. The Federal Communications Commission (FCC), which is charged with implementing the act along with courts such as the 9th Circuit, has determined that this restriction applies to both voice calls and text or short message service (SMS) messages.

Second, the TCPA separately prohibits callers from using a prerecorded or artificial voice message to call residential telephone numbers without prior express consent, subject to certain exceptions (e.g., calls that do not include a solicitation).