The Telephone Consumer Protection Act or the “TCPA” is the principal federal law that provides protection against unauthorized commercial communications with consumers. The TCPA specifically restricts the use of auto dialer devices and the use of pre-recorded voice messages by telemarketers and debt collectors when communicating with consumers through their cellphones and residential land lines. It also restricts telemarketers from calling consumers who listed their numbers on the do not call registry.
Historically, the term “auto dialer” has been broadly construed to include any device that has the capacity to produce, store and call telephone numbers using a random or sequential number generator. Most any form of computer dialed call is arguably included. Therefore, the vast majority of commercial calls made to Americans fall under the TCPA. A pre-recorded voice message, on the other hand, is a recorded human voice message used by a caller to contact a consumer. The different types of violations are explained below.
Cellphones: The TCPA prohibits use of automated calls, pre-recorded messages and text messages to cell telephones. The law applies to all cellphones whether used for business or personal use. In essence, a telemarketer or debt collector violates the law every time it makes an automated "robo" call, pre-recorded message, or text message to a consumer's cell phone, unless the consumer previously consented to the call by giving the telemarketer or debt collector permission to call. Where consent has been previously given, the consumer can revoke that consent at any time by notifying the telemarketer or debt collector to stop calling. Please note that consent is commonly provided in the fine print of most any consumer agreement. As such, many lawsuits are litigated over the issue of whether the consumer reasonably revoked consent to call or text their cell phone.
Land Lines: The TCPA offers much less protection for land lines. It does, however, prohibit the use of pre-recorded messages for calls to land lines, but it only applies to solicitations from telemarketers with whom the consumer does not have an "established business relationship." If the consumer has done business with a telemarketer/seller within the last 18 months, or inquired within the last three months, then it is presumed that the consumer has an established business relationship with that telemarketer/seller under the TCPA.
Do Not Call Registry: The TCPA prohibits any solicitation calls to those consumers whose telephone numbers are registered on the do not call list. Consumers can register both their cellphone and residential lines on the do not call registry.
Other Types of Violations: Under the TCPA, telemarketers and debt collectors using an auto dialer are also forbidden from other practices, including calling the consumer before 8:00 a.m. or after 9:00 p.m. The caller must additionally, during any call, provide his or her name, the name of the business entity on whose behalf the call is being made, and a telephone number or address at which they may be reached.
Remedies: Consumers who receive autodialed calls to their cellphones or pre-recorded voice calls to their cellphones or landlines, may file a lawsuit against the telemarketer or debt collector under the TCPA. A consumer can recover a $500 penalty for each and every call that violates the TCPA. The penalty amount can be increased to $1,500 per violation if the consumer’s TCPA rights are found to have been knowingly and willfully violated. A consumer can also recover their attorney’s fees under the TCPA.
The most common problem with initiating a TCPA case against a telemarketer is the inability to properly identify the caller. Lawsuits against pure scammers are rarely successful as scammers are protected by the anonymous nature of the scheme and/or have no legal assets from which a judgment can be collected. Even in some circumstances where a fairly legitimate product or service is being advertised through these solicitations, a layer of anonymity may be introduced by the seller, perhaps through shell companies or third-party agents, in order to avoid liability under the TCPA for undesired and illegal communications. Therefore, identifying the true culprit for litigation can prove difficult. However, there are typically no such problems with respect to illegal calls from debt collectors, including mortgage loan servicers or credit card companies.
Should you have questions about the TCPA, please contact us. Jason Causey at Bordas & Bordas has litigated a number of these cases on behalf of consumers against debt collectors and we provide an initial consultation free of charge.