On July 22, 2024, Bikers Against Drunk Drivers Inc. ("BADD") was sued in the United States District Court for the Southern District of California for allegedly violating the Internal Do Not Call ("DNC") compliance provisions of the Telephone Consumer Protection Act ("TCPA"). As our readers are aware, the TCPA was signed into law in 1991 to restrict certain telephone solicitations that invade upon the privacy of United States consumers. The TCPA requires that telemarketing companies maintain a list of consumers that have requested not to receive any further telemarketing calls/texts from, or on behalf of, said companies. Internal DNC noncompliance is a violation of the TCPA and creates a private right of action for the aggrieved to recover statutory damages.
In Fouda v. Bikers Against Drunk Drivers Inc., Plaintiff alleged that she received a text message promoting BADD's services. Plaintiff replied by texting "STOP." Plaintiff alleges that she received sixteen text messages sent by, or on behalf of, BADD after her attempt to opt out. The TCPA's Internal DNC compliance provisions require, among other things, that companies institute procedures for: 1) creating a list of consumers who elect to opt out of the receipt of future communications; and 2) training their employees on how to honor such opt out requests. Because Plaintiff requested that her cell phone number be added to BADD's internal DNC compliance list and BADD continued to send her marketing messages, it would appear that each of the sixteen subsequent text messages may have been sent in violation of the TCPA's Internal DNC provisions. Readers of this blog know that the TCPA allows for class members to recover damages of $500 to $1,500 per violation. Given the scope of potential statutory liability, it is important that companies engaged in telemarketing familiarize themselves with the TCPA's internal DNC compliance provisions.
Key Requirements and Exceptions to the Do Not Call Compliance Provisions
Once a consumer asks to be added to an internal DNC compliance list, companies are generally prohibited from contacting said consumer again. Under the TCPA, telemarketers are liable for statutory damages in the amount of $500 per call/text following the consumer's request. If a court of law finds that a TCPA violation was willful, it may award the call recipient up to $1,500 per call/text.
The internal DNC provisions of the TCPA contain several additional requirements, including:
- Companies must place the consumer's name, if provided, and telephone number on their internal DNC lists at the time the request is made;
- Companies must honor a consumer's internal DNC request within 30 days from the date of such request;
- Companies engaged in placing artificial and/or prerecorded voice calls must have a written policy, available upon demand, for maintaining a DNC list; and
- Companies must train their personnel concerning the existence, and use, of their internal DNC lists.
Why is Fouda Important to Your Business?
To reiterate, the Plaintiff in Fouda alleges that she requested that her cell phone number be placed on BADD's internal DNC list on March 25, 2024. She further alleges that, from March 25, 2024 through April 22, 2024, she received sixteen additional text messages promoting BADD's services. Because this is a putative class action, BADD is potentially liable for thousands of violations of the TCPA's Internal DNC compliance provisions. If the class is eventually certified, even at the statutory minimum of $500 per violation, BADD faces an enormous judgment.
Against this backdrop, it is critical that companies maintain proper internal DNC compliance procedures. Telemarketers must also ensure that their personnel are well-trained in observing internal DNC consumer protections.
The Telemarketer's Guide To Do-Not-Call Compliance
TCPA Text Class Action Against Wolf of Wall Street Dismissed
Duguid v. Facebook, Footnote 7: TCPA Landscape Significantly Altered by Ninth Circuit Decision
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.