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Jacksonville Loses Big in Federal Telephone Consumer Protection Act Suit

The Telephone Consumer Protection Act (TCPA) is the federal law that governs business and telemarketing communications to consumers. Interline Brands Inc., based in Jacksonville, Florida, just settled to the tune of $40 million in a class action suit that alleged that the company had violated the TCPA by sending illegal advertisements via faxes. The suit dates back to May 2011, when, according to the plaintiffs, Interline sent unsolicited advertisements through fax during the time periods of 2007 through 2011. The lawsuit alleged that Interline actions were in violation of the now defunct TCPA requirement that companies not send unsolicited fax advertisements to those consumers with whom they did not have previously existing business relationships.

Interline is a maintenance product distributor based out of Jacksonville, Florida. According to a recent SEC filing, the company denied any wrongdoing with regards to violating the TCPA, stating that that motivation behind the settlement was simply in order to avoid additional litigation costs. The proceeds from the settlement will be distributed to the class action members based on the number of faxes that Interline sent to their company. This recent settlement represents a broader uptick in TCPA cases. Since 2009, such cases have been on the rise, and while there were 272 suits filed in 2010, during the timeframe between January 2014 through September 2014 almost 2,000 TCPA cases were filed by consumers.

The Telephone Consumer Protection Act

As of October 16, 2013, prior express written consent from the consumer is required for the lawful transmission of prerecorded calls, robo-dials, and texts sent to wireless accounts, and also for prerecorded phone calls made to landline numbers for the purposes of telemarketing or advertising. The TCPA is the federal law regulating robo-dial calls, text messages, telemarketing calls, prerecorded calls, and unsolicited faxes, and requires express written consent of the consumer to receive such messages in order for companies to be in compliance. It is also the federal law with the authority to generate National Do-Not-Call Lists, and the Federal Communications Commission (FCC) is the federal agency with the duty to regulate and issues rules regarding the TCPA. The FCC has provided a list of the types of calls that do not require express written consent. Such exempt communications include survey and research calls and fraud alert calls to the extent that such communications do not contain telemarketing communications.

Under the TCPA, the term telemarketing is used to describe the initiation of a communication with the intent to encourage one to purchase, rent or invest in particular services, property, and goods. In 2013, the prior business relationship exemption was struck down, but was still applicable in the recent case against Interline because their activities occurred before the exemption was removed. Now the only exceptions that exist to the TCPA requirements concerning telemarketing include calls that:

  • Were not made for commercial purposes;
  • Were dialed manually and did not contain a prerecorded communication;
  • Were made for emergency purposes;
  • Were made for a commercial purpose but did not contain an advertisement, and could not be considered telemarketing;
  • Were made by or on behalf a organization with nonprofit tax-exemption status; or
  • Delivered a healthcare message made either by or on the behalf of an entity covered by the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rules.

Consumer protection prosecution under the TCPA has been on the increase here in Florida. If you require legal representation in a federal lawsuit, contact criminal defense attorney Jeffrey S. Weiner, P.A. in Miami.

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