The Virginia Governor recently signed into law amendments to the Virginia Telephone Privacy Protection Act that significantly increase the exposure of businesses that place marketing calls or text messages to Virginia residents.
The amendments take effect July 1, 2020, and address four topics: (1) the definition of a “telephone solicitation call,” (2) caller identification, (3) the private right of action, and (4) Attorney General enforcement.
- Telephone Solicitation Call: The amendments clarify that the definition of a “telephone solicitation call” includes text messages, in addition to calls to landline and wireless numbers. Notably, the definition is drafted broadly. First, the Act will apply to calls and text messages to any number with a Virginia area code, regardless of whether that number belongs to a consumer or a business, potentially introducing another point of exposure for alleged do-not-call violations for B2B calls. Second, it will apply to numbers with non-Virginia area codes that are registered to a natural person who is a resident of Virginia. Identifying state of residence is already a difficult task, particularly if businesses do not collect address information, and relying on area code alone will no longer be sufficient once the amendments take effect.
- Caller Identification: The amendments will expressly prohibit telephone solicitors from “engaging in any conduct that results in the display of false or misleading caller identification information.” While the Act will retain language that allows telephone solicitors to display the name and telephone number of the person or entity on whose behalf the call or text is being made, provided the telephone number displayed is that entity’s customer service number, these amendments introduce a new source of liability for businesses – particularly those that contract with third-party service providers to send text messages (often from short codes).
- Private Right of Action: The amendments will significantly increase the damages individuals may recover for violation of the Act, including the new caller identification provisions, as well as the existing do-not-call and call abandonment provisions – from $500 per violation under the current law, to $500 for a first violation, $1,000 for a second violation, and $5,000 for each subsequent violation under the amendments. The increased liability is based on calls and texts received in violation, regardless of any intent or actual damages. A single call or text message constitutes a violation, so these payments can add up quickly, particularly if Virginia state law claims are allowed in addition to claims under the Telephone Consumer Protection Act (which also provides for up to $500 per violative call or text message) for a single call or text message.
- Attorney General Enforcement: The amendments will similarly increase the penalties that the Attorney General can seek on behalf of aggrieved individuals – from $500 per violation under the current law, to $500 for a first violation, $1,000 for a second violation, and $5,000 for each subsequent violation under the amendments. A court may also assess up to $5,000 in civil penalties for each willful violation of the Act (even if it is the first or second violation).
Telemarketing remains a high-risk area, in part due to the varying requirements at the federal and state levels, which states continue to update. Consumers and plaintiffs’ attorneys also recognize the potential for high-dollar payouts, and we expect that these amendments, and the increased penalties available, could make Virginia an appealing forum. These amendments also emphasize the benefits of relying on valid consent to place marketing calls and text messages, as well as ensuring compliance with federal and state requirements throughout the lead flow process. If you have questions about specific campaigns or practices, please do not hesitate to reach out to us for guidance.