Lawmakers designed the Telephone Consumer Protection Act (TCPA) to reduce unwanted contact from businesses to consumers. Although noble in their goals, the reality of this law has led to many headaches for businesses and consumers alike. A prime example is the possibility that this law, designed simply to navigate communications issues, could potentially snowball into allegations of criminal wrongdoing.
Option #1: The TCPA itself
Although the language of the TCPA does not include criminal provisions, the Communications Act, where the TCPA is found, does. It seems pretty convoluted, but this connection makes it possible (though unlikely) for a TCPA civil case to evolve into a criminal case.
A recent case dove into this. The case, Van Connor v. One Life Am., involved a defendant who refused to provide requested information citing the 5th Amendment protection against self-incrimination. The court agreed, stating that the plaintiff could not require the defendant to respond to the information requested during discovery as there was a chance, however unlikely, that the government could use the responses against the defendant during criminal prosecution. Ultimately, the court stated the plaintiff could ask general questions about telemarketing, but not specifics about the manner and means of the contacts.
Option #2: New legislation
U.S. Senator Maggie Hassan joined a number of lawmakers to push for passage of the Deter Obnoxious, Nefarious, and Outrageous Telephone (DO NOT) Call Act. If passed, this law will increase penalties and include a potential prison sentence of up to one year for knowing and willful violations of the TCPA. It would also double the current maximum allowable penalties under the TCPA for falsification of caller identification crimes, increasing the fine from $10,000 to $20,000.
What’s a business to do?
Tread carefully. Reevaluate marketing practices and take cautious but assertive action if you face allegations of a TCPA violation. We will watch this evolving area of the law and provide updates as they become available.