The Telephone Consumer Protection Act of 1991, codified as 47 U.S.C § 227 (TCPA), and its implementing regulations (to the extent applicable) have caused confusion since their enactment.1 At times, determining who may be called, texted, or faxed seems like playing a game of three-dimensional chess. Gaining an understanding of the statute and its regulations is the first step to ensure compliance and avoid potentially costly litigation and liability, which could include, among other things, individual and putative class-action lawsuits brought by consumers and governmental investigations and actions seeking monetary forfeitures. To that end, this GT Advisory seeks to give readers a basic understanding of the TCPA and some of its principal regulations. Our accompanying flowchart will further assist readers in determining whether their practices may potentially trigger liability under the TCPA. The advisory and flowchart are not comprehensive. They cannot be. Put simply, the TCPA, its regulations, regulatory rules/orders, and case law are too voluminous and complex to summarize in a relatively short advisory and one-page flowchart. Nonetheless, we hope the advisory and flowchart provide some preliminary insight into the enigma that is the TCPA.
1 See, e.g., Gonzalez v. Hosopo Corp., 371 F. Supp. 3d 26, 34 (D. Mass. 2019) (“In summary, the TCPA is an unusually confusing statute.”); Ruffrano v. HSBC Fin. Corp., No. 15CV958A, 2017 U.S. Dist. LEXIS 132674, at *33 (W.D.N.Y. Aug. 17, 2017) (“One commentator noted that while clarifying certain aspects of the TCPA, the 2015 FCC Order resulted in confusing, conflicting rules . . . ”) (internal quotes omitted); Baird v. Sabre Inc., 995 F.Supp.2d 1100, 1106 (C.D. Cal. 2014) (noting that FCC regulations of the TCPA are “not a model of clarity”); Weitzner v. Sanofi Pasteur, Inc., No. 3:11-cv-2198, 2013 U.S. Dist. LEXIS 138188, at *3 (M.D. Pa. Sep. 26, 2013) (“Interpretation of the language in § 227(b)(3) has caused substantial confusion . . . ”).