Cellphone User Protection Law Puts Businesses in Peril

March 7, 2016 Published Work
Connecticut Law Tribune

In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA) to curb the use of unwanted robocalls and spam faxes, which were inundating consumers. For years, there was little litigation involving the law. As recently as 2007, there were only 14 TCPA lawsuits filed in federal court. But litigation has skyrocketed. Last year, there were 3,710 TCPA lawsuits, a 45 percent increase over 2014. A whopping 877 of those cases were filed as putative class actions, exposing business defendants to potentially crippling damages. (Statistics provided by Web Recon LLC.) There is every reason to expect the explosion to continue.

One major reason is the continued shift toward the use of cellphones. When the TCPA was passed, text messages did not exist, there were only a few million cellphones in the entire country, and those phones were expensive to use, generally charging the user for each call or text message received. For this reason, the TCPA contained onerous rules to protect cellphone users from unwanted calls.

Now, more than 90 percent of U.S. adults have a cellphone, virtually all service plans come with unlimited talk and text, and 8 trillion texts are sent each year. Indeed, more than 40 percent of Americans no longer have a land line. Realistically, if businesses want to communicate with customers or potential customers, they must contact cellphones. Yet, Congress has not revised the TCPA, which continues to single out cellphone owners for kid-glove treatment.

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