TCPA’s Do Not Call Safe Harbor Fights Off Serial Litigant

Published: Feb. 01, 2022

A federal judge in Washington state ruled that substantial compliance with the Telephone Consumer Protection Act (“TCPA”)’s Do Not Call (“DNC”) safe harbor provision can shield a company from TCPA liability based on DNC violations. In Johansen v. eFinancial LLC, the court tossed TCPA claims against eFinancial on summary judgment, finding that eFinancial’s compliance with the TCPA’s safe harbor requirements insulated it from liability for an allegedly unsolicited call from a serial TCPA litigant. This decision adds a tool to defendants’ belts against increasingly popular TCPA DNC suits, which have gained steam in the aftermath of the Supreme Court’s ruling narrowing the definition of an autodialer.

Plaintiff alleged that eFinancial violated the TCPA by calling him even though he was on the national DNC registry. The Plaintiff denied having submitted his information to eFinancial’s site. The Judge found that eFinancial presented credible evidence that it received the Plaintiff’s name and telephone number from a submission on its website and that the Plaintiff provided additional information necessary to get an insurance quote on a following call. Additionally, and more importantly, the court held that regardless of uncertainty about how the Plaintiff’s information was submitted, eFinancial’s procedures brought it within the scope of the safe harbor. 

The safe harbor provides, “[i]t shall be an affirmative defense in any action brought under this paragraph that the defendant has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection.” 47 USC § 227(c)(5)(C).

If a business violates the TCPA’s DNC provisions, the safe harbor shields the business from liability if the call was placed in error and that call was made as part of the business’s routine practices. Businesses must establish the following routine practices: (1) written procedures to comply with the national DNC rules; (2) training of personnel on those procedures; (3) maintaining a list of numbers not to contact; (4) accessing the nation DNC database; and (5) not using the national DNC database for any reason other than compliance with the statute. 47 C.F.R. § 64.1200(c)(2)(i)(A)-(E).

At summary judgment, eFinancial successfully established its practices fell within the DNC safe harbor, including submitting evidence it only contacted persons who requested to be contacted. The protections were robust enough to shield eFinancial from liability even though eFinancial did not reference the national DNC Registry before calling and did not demonstrate it contacted the Plaintiff “in error.”

The decision is the first to indicate that substantial compliance with the requirements can be enough to bring the caller within the protection of the safe harbor, providing a powerful defense to DNC-based claims. While this decision provides a promising defense against DNC claims, the safe harbor does not protect against non-DNC-based claims, e.g. those alleging a business violated the TCPA’s autodialer, prerecorded, or artificial voice provisions. Businesses should remain vigilant in monitoring the telemarketing landscape, as litigants continue to pursue new theories under the TCPA and state telemarketing laws.