As you work on your marketing campaigns and prepare to reach out to potential customers, you should make sure you understand the rules and regulations regarding contacting prospects–and the costly consequences of not complying with them. Understanding Telephone Consumer Protection Act (TCPA) violations and knowing how to avoid them can help to protect you from serial litigators.
What Are TCPA Violations?
Whether you’re a professional in the marketing space or the legal field, you should know the importance of avoiding TCPA violations, such as not having a consumer’s prior express written consent to be contacted. This means you have a documented record that the consumer agreed to be contacted, they agreed to your TCPA legal disclosure language, and they provided their phone number.
The burden of proof is on you, the caller/business. You could face fines up to $1,500 per call or text message–not to mention the time and money you could spend dealing with a court case–if you are unable to provide sufficient proof that someone agreed to hear from you.
If you are researching TCPA requirements for telemarketing calls, the name “Craig Cunningham” likely rings a bell – or perhaps, more fittingly, an alarm.
The First Rule of TCPA Telemarketing: Don’t Call Craig Cunningham
Over the past decade, Craig has made a name for himself by filing over 150 Telephone Consumer Protection Act (TCPA) lawsuits – a staggering amount for an individual representing himself in the majority of his cases. He has created a new type of career as a “professional plaintiff,” targeting marketers using automation to call or text prospective customers without their consent – whether the outreach was made in good faith or not – and has since become infamous for putting TCPA violations into the spotlight.
While the TCPA originally went into effect all the way back in 1991, the clarity of its regulations began to blur as technology advanced rapidly over the next two decades. As the years went by, TCPA litigation fines continued rising at rapid rates thanks to loopholes and overall confusion, which led the Federal Communications Commission (FCC) to release a Declaratory Ruling and Order in July 2015 in an effort to clarify the issues surrounding the regulations.
In 2021, the United State Supreme Court defined an automatic telephone dialing system (ATDS) as a device that must “store a telephone number using a random or sequential generator or to produce a telephone number using a random or sequential number generator” (National Law Review). Although this ruling can be considered victorious for companies facing TCPA litigation, it should also serve as a reminder for organizations to review and update their telemarketing and/or automatic dialing practices.
Because technology and outreach efforts keep evolving so quickly, it’s becoming more difficult for marketers to discern if their outreach is compliant or not, which in turn is making it easier than ever for people like Craig to hit companies of all sizes and industries with TCPA lawsuits.
The Beginning of a Career in TCPA Violations
Craig Cunningham’s illustrious journey into the world of TCPA lawsuits began back in 2014, preying initially on debt collection companies and later widening his targets to companies like home security providers and resellers and adding promotional outreach violations to his arsenal. As he began to find more success with his lawsuits – most companies would rather settle the $500 or $1,500 fine per call than spend hundreds of thousands dollars in court – Craig began to spread awareness about his successes on financial forums and outlets so others could follow suit. He even claimed that he was writing a book titled Tales of a Debt Collection Terrorist: How I Beat the Credit Industry At Its Own Game, although nothing under that title has been published yet.
Craig’s most recent victim was Radius Global Solutions, LLC, whom he sued in September 2020 for placing a missed call to his phone, which Craig argued was an illegal robocall. He claimed that he had wasted his time and money trying to determine who called him by dialing the number from which he received the missed call. As a result, the Court denied Radius’ motion to dismiss, which will in turn allow Cunningham to continue his efforts to prosecute the TCPA claim. This decision from the United States District Court for the Eastern District of Texas may set a tough precedent for TCPA lawsuits regarding missed calls in the future.
Copycat TCPA Lawsuit Chasers
Now, Craig’s success has even inspired others to follow his lead in an attempt to catch marketers in the act of non-compliant campaigns and get an easy payout. A man named Andrew Perrong has filed dozens of lawsuits since 2015, winning against a variety of companies, from debt collection agencies to huge corporations like Verizon and Citibank. A woman named Melody Stoops has testified in court that she has collected 35 cell phones to support her “business” of being a professional TCPA plaintiff, simply waiting for the wrong company to call. These cases usually settle out of court for amounts ranging from $10,000 to $250,000.
As recently as July 2022, Stephen Muccio of Palm Beach County, Florida, filed a proposed class action lawsuit against Global Motivation, alleging that “the company sent unsolicited telemarketing messages to people without their permission in violation of federal and state telephone consumer protection laws.” In addition, the plaintiff claimed Global Motivation did not update their Do Not Call (DNC) list or provide a way for text message recipients to opt out of receiving messages, nor did they comply with Florida’s solicitation act that requires the name of the individual calling, the name of the company they are calling on behalf of, and the address or phone number of the caller. Such TCPA violations could result in $500 of statutory damages for each message from the company.
Why Is TCPA Consent Compliance Important?
To ensure complaints don’t escalate into lawsuits, you need high-quality proof of consent that you can share as quickly as possible. If you’re a marketer who relies on buying leads to fill your funnel, you’re familiar with the challenges of verifying and documenting consent for TCPA consent compliance. If you’re not careful, your company could go out of business due to fines and lawsuits. The last thing you want is to buy a lead who turns out to be someone who sues your company, and this happens often to both large and small businesses.
Many litigators assume you’re not going to have documented consent and think it will be easy to sue you and get a settlement. If you want to outsmart the TCPA litigators, you need to properly collect consent, document that consent, and be able to quickly access the documentation.
Help Protect Your Business with TrustedForm, a TCPA Compliance Software
Remember: you may be taking the necessary steps to obtain consent before contacting a consumer, but unless you can prove the consent was given, you are still vulnerable to fines and lawsuits.
Spending time fighting lawsuits is a drain on your resources and time. As more “Craigs” sprout up around the country, the higher your chances are of calling someone who will jump at the chance to take your company to court. That’s why it’s more important than ever to stay up to date on TCPA consent requirements and take steps to protect yourself as soon as possible.
With TrustedForm, our TCPA compliance software, you receive unbiased third-party documentation of consent and real-time actionable insights about the leads you’re acquiring. This proof of consent can protect you in the event of TCPA violations while giving you new confidence that your leads have actually asked you to contact them. You can also look into litigator scrubbing software that protects your business with a litigation firewall or a cloud-based service.
Contact us today to schedule a demo and to learn more.
This post was originally published on November 10, 2017. It has been updated to include the latest details on this ongoing story.