While the Telephone Consumer Protection Act (TCPA) of 1991 was enacted nearly 30 years ago, Miami-based Mark Migdal & Hayden partner and commercial litigator Yaniv Adar still sees companies making common errors in complying with the law. Such errors, which can range from overlooking state telemarketing laws to not understanding federal circuit courts' evolving and varying views on TCPA violations, can net costly legal expenses paid to outside counsel or plaintiffs.

“Generally they are underestimating the seriousness of the TCPA, [and] a lot of companies don't realize the exposure of such claims,” he said.

Adar noted he's seen a noticeable uptick in TCPA decisions in federal courts nationwide since 2013, with verdicts varying based on the circuit and TCPA issue raised. Meanwhile, in an effort to provide some clarification, the Federal Communications Commission (FCC) is set to release TCPA guidance in the coming months.

As lawyers and the telemarketing industry await this TCPA guidance, Adar highlighted the four common errors organizations need to watch for when complying with the law.

1. Not understanding the courts' and regulators' expanding and varying view of what constitutes a TCPA violation.

Courts are evolving their view of what constitutes a TCPA violation, including how to define an auto dialer system, Adar said. Indeed, in May 2018 the U.S. Court of Appeals for the D.C. Circuit struck down key parts of the FCC's expanded auto dialer definition. But six months later, the U.S. Court of Appeals for the Ninth Circuit adopted the FCC's consumer-friendly definition of an auto dialer.

“Plaintiffs are taking very creative approaches and interpretations of the law and regulations,” Adar said. Keeping up with the court's rulings, therefore, is essential in fending off lengthy or expensive litigation.

2.  Being caught off guard by plaintiffs pursuing vicarious liability claims.

Not all businesses are directly telemarketing to potential clients, as some instead use third party services. But plaintiffs can attempt to hold a company accountable for TCPA violations committed by their third party. Such risks and liability should be discussed early when companies strike up vendor relations, Adar said.

“I think allocating the burden of risk with their marketing companies early in the relationship would be very helpful.” He added, “When engaging in third-party marketing, the TCPA should be discussed at the onset and not after a lawsuit is filed.”

3. Overlooking state telemarketing laws to the company's detriment.

Adar noted that some state telemarketing laws are similar to the federal TCPA in that they have a Do Not Call List that companies must adhere to. Various state attorneys general are also actively pursuing state-level TCPA violations, with Florida being the most active, he added.

What's more, Adar has also noticed an increase of state attorneys general filing independent telemarketing actions. Recently, for example, Florida's attorney general announced her office would be mailing $314,945 to victims of a telemarketing scam, the Daily Business Review reported. In March, Missouri's attorney general filed a suit against four Florida-based companies for allegedly violating Missouri's do-not call list.

4. Not creating an internal “do not call” policy.

While companies are federally mandated to not contact people listed on the national Do Not Call list, the TCPA may require a company have an internal policy. The internal policy, which should list all the people who requested not to be contacted by the company, is “an important way to deter TCPA lawsuits,” Andar said, explaining that such a list “would help and preempt a federal TCPA [claim].”