Class actions concerning alleged violations of the Telephone Consumer Protection Act of 1991 (TCPA) present special challenges to counsel and class action administrators. Knowing and preparing for the complexities that are commonly involved in administering a TCPA case can significantly reduce risk, cost and frustration.

The TCPA restricts telephone solicitations and the use of automated telephone equipment. Generally, the TCPA restricts solicitors’ behavior in regard to marketing via telephone and the use of automated telephonic equipment. That includes "robo-calls," text messages and faxes, among others. See “TCPA Guidelines: The Basics” (below) for a quick overview of the rules.

When any rule of the TCPA is violated, subscribers have the ability to sue for up to $1,500 for each violation, or to recover any monetary loss (such as a charge for a call or text message), whichever is higher. Consumers may also seek an injunction.

A single violation’s financial consequences may be negligible, but oftentimes a widespread telephone marketing campaign can reach hundreds of thousands of consumers at once — leaving an organization exposed to the risk of break-the-bank litigation.

What You Need to Know About TCPA

Much like any other class action, the settlement administration of a TCPA case requires a broad and adequate noticing campaign, an efficient claims process and careful attention to details like data point matching and regulatory compliance. But TCPA cases require special knowledge in the following key areas:

Noticing

Adequate notice is a critical component in any class action case. Ensuring potential class members are given a fair chance to file a claim, opt-out or object is of the utmost importance. Further, notices must be designed to reach their intended audience and must be clear and easy to understand — both tasks that require specialized expertise.

TCPA Noticing: Special Cautions

In a TCPA case, often the most readily available list of potential class members comes from the original violation itself. For example, if a company is settling a class action suit because it sent unsolicited mass text messages to 70,000 consumers, the only contact information the company may have for those consumers is a phone number that receives SMS text messages. It would be easy to assume that the most efficient way to notice the class would be to send a batch of text messages to the original list of phone numbers. 

Reverse Lookup

However, this method of notification runs the real risk of committing another infraction. Without prior consent, sending an unsolicited text or fax, or making an unsolicited phone call — no matter what the intent — is a violation of the TCPA. To avoid this risk, some careful data mining is required. A good claims administrator will be able to translate phone numbers into email and/or physical addresses. This is known as a “reverse lookup” process — it is iterative, and will result in a usable list of potential class members for the provision of individual notice without committing an additional TCPA infraction.

Data Point Matching

It’s not uncommon for a single phone number to have several records attached to it. A single number, whether it is a land line or a cellular phone, can change hands multiple times a year. Once reverse lookups have been performed, you should first determine whether any of the addresses are duplicates (near exact address or name matches, etc.) that can be eliminated.

When this is done, you will likely be left with a list of contacts including multiple addresses for some phone numbers that cannot be eliminated through further research. At this point, it is best practice to notice all the contacts associated with each number. Although some addresses may not be in the class, a notice plan should err on the side of inclusion of all potential class members to ensure adequacy.

Supplemental Media Notice

Ideally, the data-matching process will provide a complete list of names and email or physical addresses for the delivery of individual notice to the class. In practice, this seldom happen. Particularly if your settlement is in federal court, judges will expect the parties to quantify the reach of the overall notice effort against the estimated total size of the class.

If many class members are not identifiable from available records, an appropriate media plan will be necessary in order to achieve an acceptable overall reach (the Federal Judicial Center’s Notice Checklist and Plain Language Guide says it is reasonable to reach between 70–95 percent). Consult with an administrator that is affiliated with a recognized class action notice expert. Often it is not as expensive as one might expect to augment direct notice with an efficient and targeted publication and/or online effort.

Efficient Claims Processing

In a TCPA case, you’ll likely have a mix of electronically submitted and mailed claims. Online claim submissions are generally less expensive to process and can significantly reduce incomplete and defective claims. Because of this, it’s helpful to contract with a claims administrator with an experienced noticing team that can recommend a notice plan and notice content that encourages class members to choose the online claims filing option.

You also must be sure that you’re able to process and validate claims accurately, promptly and efficiently. Claims procedures and processes must be custom-designed to suit the particular case. You’ll also need to handle the reporting and analytics for the court, including identifying exceptions and resolving disputes.

To intake and manage paper claims quickly and accurately, make use of data capture technology like optical character recognition (OCR) and intelligent character recognition (ICR). Claimant communications is also critical — for particularly large class actions, you may consider a contact center solution including a call center and claimant email intake and response services.

The Right Settlement Administrator

The complexity involved in administering a TCPA case — from identifying and notifying class members without additional risk exposure, to processing claims and disbursing awards — should not be underestimated. Contracting with an administrative firm with the capabilities and expertise to effectively and efficiently administer a TCPA case should be a priority at the case’s outset.

Look for a firm that has significant experience administering TCPA cases of all varieties — from mass texts to prerecorded calls and faxes. Next, be sure to choose a firm that offers both its noticing capabilities and its settlement administration services under one roof. This ensures comprehensive and compliant communications with class members, and delivers a seamless project from start to finish.

TCPA Guidelines: The Basics

Prohibited:

• Calling residences before 8 a.m. or after 9 p.m.
• The use of artificial voices or recordings
• Automated calls to emergency lines, hospitals, physician's offices, cellular telephones, or any service for which the recipient is charged for the call
• Unsolicited advertising faxes and SMS text messages
• Autodialed calls that engage two or more lines of a multiline business

Required:

• Maintain a “do-not-call” list of consumers
• Comply with the National Do Not Call Registry
• Provide a name, the name of the person or entity on whose behalf the call is being made, and a telephone number or address