Christine Reilly and David Kaminski presented a seminar on effective mobile marketing compliance strategies under the Telephone Consumer Protection Act (TCPA). They discussed how the TCPA regulates automated calls and texts to mobile phones, including requiring prior express written consent for telemarketing. They also explained recent changes that tightened the rules, such as needing written consent as of October 2013, and common issues companies face with TCPA compliance.

1. Mobile Communications Marketing:
Effective Compliance Strategies to Avoid Penalties and
Lawsuits Under the TCPA
Christine M. Reilly
Partner, Loeb & Loeb LLP
David J. Kaminski
Partner, Carlson & Messer LLP
December 3, 2014
11:00 – 12:30 p.m.
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3. Today’s Discussion Leaders
Christine M. Reilly is a partner in Loeb & Loeb’s Consumer Class Action and Regulatory
Department in Los Angeles. She represents clients in consumer protection class actions,
including those alleging violations of the Telephone Consumer Protection Act, as well as in
investigations and proceedings initiated by the Federal Trade Commission, Federal
Communications Commission, and other federal and state regulatory agencies. Ms. Reilly
regularly counsels clients on compliance issues and hosts the TCPA Defense Forum on
LinkedIn. www.loeb.com/tcpa-defense-forum/
David Kaminski is a Partner at Carlson & Messer LLP, a Los Angeles defense firm which
focuses its practice in creditor’s rights and financial services litigation. For years, he has
been a tireless advocate in defending the banking and credit industries in individual and
class action claims brought under the TCPA as well as all consumer protection statutes. He
has extensive experience in multi-district (“MDL”) and class action litigation. He is also a
recognized authority and speaker on such topics.
David serves as outside compliance counsel to banks and creditors and has developed
policies, procedures, and compliance/training programs to minimize their risks of liability.
He regularly defends clients in investigations and proceedings initiated by the CFPB, FTC,
FCC, and other federal and state government and regulatory agencies.
http://cmtlaw.com/cm/
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4. Tread Carefully, Piranhas Ahead!
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5. Today’s Mobile Society
Technology and the rise of the mobile society
• Approx. 4 billion mobile phones in use in the world
• More than 3 billion are SMS text message enabled
• Mobile is primary means of contact for many consumers
• Companies are embracing mobile marketing
• Mobile is immediate, effective and fairly inexpensive
• 95-98% of text messages are opened within minutes
Privacy is a hot topic
• President Obama and Congress’ agenda includes privacy
• FTC has made consumer privacy a focus
• FCC strengthened TCPA opt-out and consent requirements applicable to
telemarketing
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6. Today’s Mobile Society
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7. Today’s Mobile Society
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8. The Telephone Consumer Protection Act
• Regulates and restricts the use of automated technology
to initiate outbound telephone calls
• Automated technology includes: artificial voices,
prerecorded voice messages and autodialers
• Applies to voice calls, voice messages, SMS text
messages, and faxes
• Provides for national and internal Do-Not-Call lists
• The Federal Communications Commission (FCC) has
authority to regulate under the TCPA
• Sources of Authority
• 47 U.S.C. § 227
• 47 C.F.R. § 64.1200 et seq.
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9. Popularity of TCPA Class Actions
• Statutory Damages: $500 per call or actual damages, whichever is greater.
• Up to $1,500 per call for willful or knowing violations.
• Potential for significant damages.
• 1,000 x $500 = $500,000
• 10,000 x $500 = $5 million
• 50,000 x $500 = $25 million
• 100,000 x $500 = $50 million
• 500,000 x $500 = $250 million
• 1,000,000 x $500 = $500 million
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10. TCPA Overview
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11. What Does the TCPA Cover?
Residential
• Only covers telephone calls that are initiated using an artificial voice or prerecorded
voice message
• Can initiate calls using live operators or autodialers without triggering the TCPA
Mobile—covers telephone calls that are initiated using an artificial voice or prerecorded
voice message OR an “automatic telephone dialing system” (i.e., autodialer)
Note: Do-Not-Call requirements apply to both mobile and residential phone calls
regardless of method of initiation!
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12. What is an Autodialer?
“Automatic telephone dialing system” means equipment that has
the capacity:
(A) to store or produce telephone numbers to be called, using a
random or sequential number generator; and
(B) to dial such numbers.
47 U.S.C. §227(b)(1)(A)
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13. The FCC says…
• The “basic function” of an autodialer is the “capacity to dial numbers
without human intervention.” (See In the Matter of Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, CG Docket
No. 02–278, 23 FCC Rcd. 559, 566, ¶ 13 n.48 (2008) (“2008 Order”) citing
2003 TCPA Order, 18 FCC Rcd at 14091-2, para. 132.
• An ATDS encompasses hardware that “when paired with certain software,
has the capacity to store or produce numbers and dial those numbers at
random, in sequential order, or from a database of numbers.” 2008 Order
citing 2003 TCPA Order, 18 FCC Rcd at 14091, para. 131.
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14. The ATDS Defense
Dominguez v. Yahoo, Inc., 2014 U.S. Dist. LEXIS 36542 (E.D. Pa. March 20,
2014) (appeal pending; submitted after oral argument)
• Prior mobile subscriber had signed up to receive mobile alerts alerting
user that email received to Yahoo account.
• In granting motion for summary judgment in favor of Yahoo, court held
there was no ATDS because service did not randomly or sequentially
generate numbers, but only sent messages using a queue system when a
user received a Yahoo email.
• Since statutory definition was clear, court refused to rely on broader
interpretation of ATDS by FCC (i.e., calling telephone numbers from a
calling list is sufficient for ATDS purposes).
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15. The ATDS Defense
Sherman v. Yahoo, Inc., 2014 U.S. District LEXIS 13286 (S.D. Cal. Feb. 3,
2014)
• Plaintiff received notification from Yahoo on his mobile phone that a
third party was sending him an instant message via Yahoo’s
Messenger service.
• Yahoo argued that its equipment did not have the capacity to send
messages to random or sequential numbers.
• Plaintiff argued that the system could dial all phone numbers by
writing new software code, and therefore had the capacity to dial
telephone numbers sequentially from a list of numbers.
• Yahoo’s motion for summary judgment denied due to genuine issue
of material fact.
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16. The ATDS Defense
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Marks v. Crunch San Diego, LLC, No. 14-CV-00348-BAS-BLM, 2014 WL
5422976 (S.D. Cal. Oct. 23, 2014)
• Granted summary judgment on ATDS issue
• Held third party platform used to send text messages did not contain
random or sequential number generator
• Held reference to 2008 ruling on ATDS definition violated Chevron
deference and read “random or sequential number generator” out of
statute
• Regardless, held that equipment required human intervention as third
party dialing platform explicitly banned inputting numbers into its
system without either a response to a call to action or “written
consent.”
• Implied that only present, not potential capacity is relevant

17. TCPA Requirements for
Mobile Marketers
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18. Consent for Mobile Calls
Customer service/ informational calls:
• Prior express consent required
Debt collection calls/Informational Calls:
• Prior express consent required
Marketing calls:
• Prior express written consent required (effective October 16, 2013)
You ALWAYS need some kind of consent when dialing mobile phones
using an automated dialing equipment, artificial voices or prerecorded
voice messages!
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19. The “TCPA Wireless Cliff” – October 16, 2013
Game changer for mobile marketing!
The FCC changed the rules. As of October 16, 2013, verbal consent to initiate mobile
telemarketing telephone calls (including text messages) through automated technology
(prerecorded voices or autodialers) is no longer sufficient. “Prior express written consent”
is now required prior to initiating such calls. See In re Rules and Regulations Implementing
the Telephone Consumer Protection Act of 1991, Report and Order, 27 F.C.C.R. 1830, 1831
(F.C.C. Feb. 15, 2012).
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20. Prior Express Written Consent
For Telemarketing Calls Only:
 Identify each specific seller to whom consent is being provided
 Identify the consumer’s phone number
 Indicate an affirmative agreement (i.e., I agree/ consent)
 Disclose that the consumer is authorizing the seller to engage in advertising or telemarketing
(i.e., offers for products/services)
 Disclose that the calls will be made using automated technology
 Disclose that the consumer is not required to provide consent as a condition of purchasing goods
or services
 Obtain a written signature from the consumer (either electronically through E-SIGN or
handwritten)
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21. What is Telemarketing?
• “Advertisement” means any material advertising the commercial availability or
quality of any property, goods or services.
• “Telemarketing” means the initiation of a telephone call or message for the
purpose of encouraging the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person.
• As a general rule, calls that are not purely informational in purpose and message
constitute telemarketing.
• Dual-purpose calls (calls that have both an informational and a telemarketing
purpose) are considered telemarketing. See Chesbro v. Best Buy Stores, L.P., 705
F.3d 913, 918 (9th Cir. 2012)
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22. What is Telemarketing?
Telemarketing does not include:
• Debt collection calls
• Calls for political purposes
• Calls made by loan servicers regarding the servicing of
a consumer loan, home loan modification
• Airline notification calls
• Bank and credit card balance and fraud alerts
• School and university notifications
• Research or survey calls
• Package deliveries
• Wireless usage notifications
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23. The “TCPA Wireless Cliff” – The Aftermath
• What about legacy or existing customer lists prior to October 16, 2013? Do
they need to comply with the new requirements?
• Are some of the new disclosure requirements merely “technical” in nature?
• Is the “consent not required for purchase” disclosure required in all cases?
• Who is a “specific seller” that must be named in a disclosure?
• What do these changes mean for lead generation or affiliate marketing?
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24. Other TCPA Requirements
for Mobile Marketers
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25. Other Telemarketing Requirements
Interactive Opt-Out Mechanism (effective January 14, 2013):
• Any artificial or prerecorded message that could be answered by the consumer must provide
an interactive opt-out mechanism announced at the outset and available throughout the call.
• If the consumer opts out, the number must be automatically added to the company’s Do-Not-
Call list and the call must immediately disconnect.
• If the call could be answered by voicemail or an answering machine, the message must include
a toll-free number that will allow consumers to call and opt out.
See 34 C.F.R. 64.1200(b)
Abandoned Calls (effective November 15, 2012):
• Number of dropped or abandoned calls must be no more than 3% of calls per campaign
measured over a 30-day period.
See 34 C.F.R. 64.1200(a)(7)
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26. Do Not Call Rules
•DNC rules prohibit telemarketing calls or telephone solicitations to
telephone numbers registered with the National DNC registry.
•DNC Rules do not apply to informational or non-telemarketing calls.
•Both residential and mobile phone numbers can be registered on the
National DNC Registry.
•Business telephone numbers cannot be registered.
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27. Do Not Call Rules
• Do Not Call Lists:
• FTC National Registry
• State registries
• Company-specific
• DNC violations require a minimum of two calls
within a 12-month period.
• Several exemptions may apply:
• Written signed agreement
• Established business relationship
• Inquiry-based—three months
• Transactional—eighteen months
• Safe harbor
• Time of day restrictions (8am-9pm)
• State telemarketing restrictions
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28. Special Issues
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29. Revocation of Consent
Diamonds are forever, but is consent?
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30. Revocation of Consent
Gager v. Dell Financial Services LLC, 2013 U.S. App. LEXIS 17579 (3rd Cir. Aug. 22, 2013)
• Plaintiff provided cell number on application for credit to purchase computer
equipment. Dell left prerecorded collection messages on her cell phone, continuing
to call after plaintiff sent a letter requesting that the calls stop.
• In a case of first impression for a federal appellate court, the Third Circuit held that
consumers have the right to revoke consent and that there is no temporal restriction
on that right.
• Third Circuit reasoned:
• Consent can be revoked under common law.
• Any ambiguity should be resolved in favor of the consumer.
• FCC’s Soundbite advisory ruling suggests that consent under the TCPA can be
revoked.
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31. Reassigned Mobile Numbers
Consent of prior subscriber does not serve as “the prior express consent of the
called party” required by the TCPA for autodialed calls to cell phone numbers.
“Consent to call a given number must come from its current subscriber.”
Court ruling:
• Language of the statute: “called party” means current subscriber
• “The phrase ‘intended recipient’ does not appear anywhere in Section
227, so what justification could there be for equating ‘called party’ with
‘intended recipient of the call’?”
• Rejects argument that consent for telephone number is effective until
revoked
Soppet v. Enhanced Recovery Systems, 2012 U.S. App. LEXIS 9560 (7th Cir. May
11, 2012); see also Osorio v. State Farm Bank, F.S.B., 2014 U.S. App. LEXIS 5709
(11th Cir. March 28, 2014)
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32. Forward to a Friend
Online Form:
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First Name: David
Last Name: Kaminski
Mobile No.: 310-242-2204
Message: Happy Birthday fellow Virgo!
Text Message to Friend:
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33. Vicarious Liability
• Sellers can be held liable for TCPA violations committed
by third-party telemarketers making calls on the seller’s
behalf.
• Two theories of liability:
• Direct liability—seller has “initiated” the call given
its very direct involvement (e.g., giving the third
party specific and comprehensive instructions as to
timing and manner of the calls) or
• Vicarious liability—seller may be held vicariously
liable for the acts of third party telemarketers under
federal common law principles of agency (agency,
apparent authority and ratification).
DISH Network Petition, FCC Declaratory Ruling issued on
May 9, 2013.
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34. Vicarious Liability
• Plaintiff brought suit against Taco Bell alleging that
text message marketing campaign by group of
Chicago-area Taco Bell franchise owners violated the
TCPA.
• Actual sender of the message was a third-party
service provider, which acted at the direction of the
Chicago owners’ advertising agency. Court found no
evidence that Taco Bell controlled or had the right to
control the company or the manner and means of
the text message campaign, and therefore the third-
party agency was not an agent of Taco Bell.
Thomas v. Taco Bell Corp., 2014 U.S. App. LEXIS 12547
(9th Cir. July 2, 2014) (unpublished)
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35. User-Initiated Texts
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36. Business-to-Business Marketing
• When it comes to the mobile provisions, there is no
distinction between business to consumer calls and B2B
calls.
• But many reasons why B2B calls should not be required to
comply:
• Possible statutory argument.
• TCPA not designed to protect these types of calls.
• Businesses more savvy and sophisticated.
• Businesses are increasingly going mobile.
• Businesses are typically unaware that the business line
they are calling is mobile.
• Businesses hold the number out as a business line and
invite the contact.
• There is no compelling reason to distinguish between
business landlines and business mobile phones.
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37. Best Practices
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38. Best Practices
• Vendor Agreements
• Supplier Terms & Conditions/Indemnification
• Brokered Lists
• TCPA Disclosures
• Scrubbing and Opt-Outs
• Recordkeeping
• TCPA For Your Business
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39. Brokered Lists
“Let’s buy a list!”
• Common practice in the advertising and marketing industry
• Demand proof from vendor of consumer opt-ins/consent
• How was the mobile phone number obtained?
• Business Reply Card
• Telephone
• Application
• Online registration
• Was there a TCPA compliant disclosure?
• Double-opt ins are preferred – must be reliable
• If a lawsuit is filed, will the vendor provide you with a list of numbers and
documentation regarding how consent was obtained?
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40. Brokered Lists
"Companies that use lead generators must exercise due diligence when
they buy lists of phone numbers or else they can be on the hook for
illegal telemarketing. Relying on a say-so that the numbers were
obtained legally, or that the consumers have agreed to be called, even if
their numbers are on the Do Not Call Registry, isn’t enough."
Jessica Rich, Director of the FTC’s Bureau of Consumer Protection.
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41. TCPA Disclosures
Telephone
Text Message
Website Email
U.S. Mail
Paper Form
Mobile App
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42. TCPA Disclosures
Website Sign-Up
 Consent: By checking this box and clicking the “I agree” button below, I verify
this is my mobile number and consent to receive text messages via automated
technology to this number regarding product offers by or on behalf of [name of
seller(s)]. I understand that consent is not required to make a purchase. I also
agree to the Terms and Conditions and the Privacy Policy. Message and Data
rates may apply.
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43. TCPA Disclosures
Signage
SIGN UP FOR OFFERS! Interested in receiving offers via text message to your mobile
phone? Text “Join” to 78391 to sign up today! By texting “Join” from your mobile
number, you agree to receive marketing messages generated by an automated dialer
from ABC Company to your mobile number. Consent not required to make a purchase.
Limit 5 txts/mth. Message and Data rates may apply.
Text Message
[Company Name]: U r signing up 4 mobile offers via automated technology. Reply YES
to confirm, NO to stop.
Confirmatory Text Message
[Company Name]: Congrats! U r now signed up 4 mobile txt offers! Reply STOP to
cancel, reply HELP for help.
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44. Scrubbing and Opt-Outs
Opt-Outs: Honor opt-outs immediately, whether verbal
or in writing.
DNC: Have a DNC policy, which includes regularly
scrubbing phone numbers against the federal DNC, state
and internal DNC lists.
Suppression Policy: Have a suppression policy and
procedure in place, which includes immediately
blacklisting and/or blocking phone numbers that
complain about the receipt of unauthorized calls.
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45. Recordkeeping
• Maintain consent records for 4 years
• Carefully document the date and substance of changes, such as changes to any registration or opt-in
process
• Maintain organized and detailed records so you can easily access, search, and retrieve relevant data
• Document the process and technology used to send text messages and/or make calls
• Create snapshots of information at static points in time
• Use Camtasia to record registration or opt-in processes
• Use templates to populate data
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46. TCPA For Your Business
Compliance Readiness Program
• Understand the law as applied to your business
• Prepare appropriate policies and procedures
• Train your employees
• Create a consumer complaint “feedback loop”
• Maintain good records
• Monitor and test your policies
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47. THANK YOU
QUESTIONS?
David J. Kaminski, Partner
CARLSON & MESSER LLP
5959 W. Century Blvd., Suite 1214
Los Angeles, California 90045
Dir: (310) 242–2204
E-mail: kaminskid@cmtlaw.com
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48. THANK YOU
QUESTIONS?
Christine M. Reilly, Partner
LOEB & LOEB LLP
10100 Santa Monica Blvd., Suite 2200
Los Angeles, California 90049
Dir: (310) 282–2361
E-mail: creilly@loeb.com
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49. Ryan Thurman
Contact Center Compliance
DNC.com
866-DNC-LIST (362-5478) x 116
ryan@dnc.com
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