Pub. 17 2018-2019 Issue 1

N E W J E R S E Y C O A L I T I O N O F A U T O M O T I V E R E T A I L E R S I S S U E N O . 2 , 2 0 1 8 26 new jersey auto retailer Marketing Your Dealership: Protecting the Bottom Line by Ensuring Customer Privacy O n March 16, 2018, the D.C. Circuit Court of Appeals, in ACA International, et al., v. Fed- eral Communications Commis- sion, released a unanimous decision narrowing a 2015 Federal Com- munications Commission (FCC) Order that expanded the scope of the Telephone Con- sumer Protection Act (TCPA). The TCPA is a regulation that restricts telemarketing calls and text messages, use of automatic telephone dialing systems (ATDS), and ar- tificial or prerecorded voice messages. The TCPA had relied on the FCC’s definition of ATDS, which included any equipment that has the capacity to dial numbers without human intervention. Thus, even if the de- vice’s ATDS was not being used, the mere capability of the phone to use an ATDS imputed liability. The long-awaited decision narrowed the FCC’s interpretation of what devices con- stituted an ATDS. The court also declined to impose a formalized process for revok- ing consent to marketing phone calls, and abandoned a rule that imposed fines on businesses for marketing calls to individu- als that consented to them, but whose phone numbers were subsequently reassigned to someone new. With penalties up to $500- $1,500 per phone call or text message, the stakes are high to stay compliant with TCPA. Dealerships have even procured the services of text marketing vendors to ensure compliance with the TCPA and other FCC regulations in text marketing to consumers. Even with the narrowing of the definition of an ATDS, before initiating any calling campaign, dealerships need to make sure they understand the rules that apply to calls and texts to cell phones. Calling cell phones using an ATDS, and without the appropri- ate consent, can be a very costly mistake. Courts have regularly authorized class action lawsuits, and settlements have been recorded in the multi-million-dollar range. The TCPA Regulations Under the TCPA, companies must obtain unambiguous “prior express written con- sent” before contacting customers through telemarketing, advertising or texting from an ATDS. The customer’s written consent must be clear and conspicuous and can be attained with a written signature, through email, by checking a box on a website form, or by a voice recording. The dealershipmust disclose that consent is not required as a con- dition of purchasing any goods or services. BY DINA M. MASTELLONE, ESQ. AND KATHERINE E. STUART , ESQ.