
Robert E. Levy
Partner
201-896-7163 rlevy@sh-law.comFirm Insights
Author: Robert E. Levy
Date: July 20, 2015

Partner
201-896-7163 rlevy@sh-law.comThe FCC’s broad interpretation of the TCPA is likely to further fuel the growing trend of class-action litigation against unsuspecting businesses.
The TCPA prohibits the use of “any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement․” The statute contains three notable exceptions: (1) if a prior business relationship exists between the parties; (2) if the recipient voluntarily makes its fax number available for “public distribution”; or, (3) if the advertisement contains a notice informing the recipient of the ability and means to avoid future unsolicited advertisements.
In addition to authorizing regulatory enforcement, the TCPA provides a private cause of action. Since the TCPA authorizes statutory damages of $500-$1,500 per violation, which generally exceeds the recipient’s actual damages, TCPA violations are attractive to plaintiffs’ class-action lawyers.
The latest FCC declaratory ruling clarifies a number of issues that may make it easier for plaintiffs to successfully bring TCPA class-action lawsuits. Below are just a few of the agency’s findings:
The FCC’s intent is to protect consumers from unwanted solicitations via telephone, fax, and text message. However, the agency’s expansive interpretation of the TCPA is likely to increase the likelihood that businesses will unwittingly violate the law and open themselves up to costly class-action lawsuits. Given the liability risk, we encourage business owners to review the FCC ruling and contact experienced counsel with any questions or concerns. Robert Levy, Chair of our Litigation Group, has litigated these issues and is available for consultation.
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