On May 6, 2024, Tarkenton Senior Solutions, LLC. ("Tarkenton") was sued in the Northern District of Georgia for allegedly violating the Do Not Call provisions of the Telephone Consumer Protection Act ("TCPA"). The National Do Not Call registry was enacted by the federal government under the authority granted to it by the Telephone Consumer Protection Act ("TCPA"). The TCPA generally prohibits companies from placing telemarketing calls to consumers who have registered their telephone numbers on the National Do Not Call list.
In Pinn v. Tarkenton Solutions, LLC, Plaintiff alleged that she received numerous calls on her cell phone advertising Tarkenton's life insurance products. Because Plaintiff's cell phone number was registered on the National Do Not Call list since 2009, and Tarkenton had not obtained her consent to be contacted (nor did it meet one of the Do Not Call exceptions), it would appear that each marketing call may have been sent in violation of the TCPA's Do Not Call provisions. The TCPA allows for class members to recover damages of $500 to $1,500 per violation. In the wake of the Supreme Court's landmark decision in Facebook v. Duguid, telemarketing plaintiffs are relying less on alleged violations of the TCPA's autodialer provisions and more on Do Not Call claims. Given the foregoing, it is more important than ever that companies engaged in nationwide telemarketing comply with the Do Not Call law.
Key Requirements and Exceptions to the Do Not Call Provisions
If a consumer's telephone number is registered on the National Do Not Call registry, telemarketing companies are generally prohibited from contacting the consumer. Under the TCPA, telemarketers are liable for statutory damages in the amount of $500 per call (excluding the first call). If a court of law finds that a TCPA violation was willful, it may award the call recipient up to $1,500 per call. Note that the telemarketer can also be fined up to $43,792 per violation of the Do Not Call provisions of the Telemarketing Sales Rule ("TSR").
Do Not Call protections are generally afforded to all consumers that register their telephone numbers on the National Do Not Call registry. However, among other exceptions, the penalty provisions do not apply to telemarketers who have an established business relationship with the consumer.
A company has an established business relationship with a consumer if: (a) the consumer has entered into a transaction with the seller within the previous 18 months, or (b) the consumer inquired about the seller's goods/services within the previous three months. Notwithstanding the foregoing, a consumer may revoke his/her consent to the receipt of future telemarketing communications from a given seller at any time.
Why is Tarkenton Important to Your Business?
As stated, the Plaintiff in Tarkenton alleges that she registered her cell phone number on the National Do Not Call registry on February 9, 2009. She further alleges that, from February 23, 2024 and through March 6, 2024, she received numerous calls promoting Tarkenton's products. At no time, Plaintiff alleges, did she ever provide consent to receive these marketing communications. Further complicating matters, because this is a putative class action, Tarkenton could be liable for thousands of violations of the TCPA's Do Not Call provisions. If the class is certified, even at the statutory minimum of $500 per violation, Tarkenton faces an enormous potential judgment.
Against this backdrop, companies that engage in telemarketing must maintain proper Do Not Call compliance procedures. Telemarketers should subscribe for access to the National Do Not Call registry, pay all necessary fees, and scrub potential called party numbers against the list.
The attorneys at Klein Moynihan Turco regularly advise clients on Do Not Call compliance and defend TCPA class action matters. In an effort to provide our clients with the best possible representation, we maintain active oversight over the most recent TCPA lawsuits, big and small.
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