Telemarketing Technology Platform Provider Liability Considerations
The FCC has recently re-affirmed potential TCPA liability for text message platforms. The liability standard for text message apps and platforms, along with relevant factors, are set forth in the FCC’s July 2015 Omnibus TCPA Order.
As things currently stand, a calling or texting platform or application may face primary liability under the TCPA as the “caller” based on a case-by-case analysis of whether the entity takes the steps necessary to physically place the telephone call (or text), or is so involved in the placing of a call to have been deemed to initiate it (as opposed to merely having some role, however minor, in the causal chain that results in the making of the telephone call).
Relevant factors regarding platform liability:
- Relative steps taken by the platform provider to place the telephone call/text;
- The extent to which the platform provider willfully enabled the fraudulent spoofing of telephone numbers;
- The extent to which the platform provider assists telemarketers from blocking caller identification;
- The different functionalities provided by the platform provider;
- If the platform provider knowingly permit clients to use the technology for unlawful purposes;
- The extent and nature of others’ involvement; and
- If the platform provider is merely a neutral conduit.
While application providers may not automatically liable as broadcasters as long as they play a minimal role, the totality of the facts and circumstances regarding the initiation/sending of a particular call/text message are greatly relevant.
In addition to primarily statutory liability, other potential theories of liability for platform providers could conceivably include substantial assistance, provision of the means/instrumentalities to commit deceptive acts, accessory liability and/or facilitation of unlawful acts/practices.
The provision of mass-telemarketing technology platforms is inherently high-risk.
Given today’s aggressive regulatory environment, all necessary precautions should be taken by conduit platform providers in an effort to minimize potential liability exposure. The foregoing includes, without limitation, the implementation of robust operational telemarketing compliance components and deliberately drafted license agreements.
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Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.
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