Duane Morris TCPA Class Action Review – 2024

amendments to the TCPA ’ s rules for placing calls made with artificial and prerecorded voices, i.e. , robocalls to residential numbers. Specifically, the TCPA provides that robocalls can be made to residential lines without consent if they are made for: (i) an emergency purpose; (ii) not made for commercial purposes; (iii) made for commercial purposes but do not include advertisements or telemarketing; (iv) made by or on behalf of a tax-exempt non-profit organization; or (v) deliver a “health care” message made by or on behalf of an entity covered by HIPAA. The Order amended these residential exemptions to adopt certain numerical limits on such robocalls, except for such calls made for emergency purposes. Now, robocalls can be placed to a residential line without consent only if the call: i. is not made for a commercial purpose and the caller makes no more than three calls within any consecutive 30-day period; ii. is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing and the caller makes no more than three calls within any consecutive 30-day period; iii. is made by or on behalf of a tax-exempt non-profit organization and the caller makes no more than three calls within any consecutive 30-day period; or iv. delivers a “health care” made by or on behalf of an entity covered by HIPAA and the caller makes no more than one call per day to each patient ’ s residential line, up to a maximum of three calls combined per week to each patient ’ s residential line. See 47 CFR 64.1200(a)(3)(ii)-(v). In addition to the new numerical limits implemented by the Order, the FCC requires callers to honor the called party ’ s request to opt-out of future calls. This requires the provision of opt-out mechanisms for the called party to make a do-not-call request. If called persons opt-out, then their number must be automatically recorded to a do-not-call list. The amendments also require the initiator of such calls to institute procedures for the maintenance of a do-not-call list, including written policies, training, recording and disclosure requirements. States are also active when it comes to enacting “mini-TCPA” statutes of their own. For some of these laws, there is nothing “mini” about them, as their restrictions in some cases are equally, if not more stringent, than the federal TCPA. For example, Connecticut enacted amendments to its telemarketing law effective October 21, 2023, that are arguably as far-reaching as any mini-TCPA to date. They generally provide that “no telemarketer may make, or cause to be made, a telephonic sales call to a consumer without such consumer ’ s prior express written consent.” S.B. 1058, 2023 Leg., Reg. Sess. (Conn. 2023). Also of note, Maryland enacted a “mini-TCPA” in May 2023 that is set to take effect at the start of 2024 and contains a broader definition of “autodialers” than what the federal TCPA provides for under the U.S. Supreme Court ’ s decision in Duguid , 141 S. Ct. at 1171-73. Maryland ’ s pending new law, titled the Stop the Spam Calls Act of 2023, further prohibits “telephone solicitations that involve “an automated system for the selection or dialing telephone numbers” or “the playing of a recorded message when connection is completed to the number called” without first obtaining prior express written consent. 2023 Md. ALS 414. The trend of states enacting or amending their own mini-TCPAs shows no signs of slowing down, making this subject area a likely continued focus for the plaintiffs’ class action bar in years to come.

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