OUR STRENGTH ON YOUR CASE®Telephone Consumer Protection Act – Illegal Robocalls
Have you ever received repeated phone calls or pre-recorded messages on your cell phone? Or if you answer a call from a strange number, do you get an automated voice on the other end telling you to wait for an important message? Robocalls are illegal, and you may well have a claim under the Telephone Consumer Protection Act (TCPA).
The best thing to do, is to keep a call log of each illegal robocall and SAVE ALL PRE-RECORDED VOICEMAIL messages you receive. These robocalls and messages do not need to be from a debt collector to violate the law. You may be entitled to statutory damages of $500-$1,500 per illegal call.
If you are receiving illegal robocalls, the Fields Law attorneys can help. Call us today to find out what you can do to stop illegal robo calls.
What Is The Telephone Consumer Protection Act?
The Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and its implementing regulations, 47 C.F.R. § 64.1200, is a federal law passed by Congress as a direct response to consumer complaints about phone calls and text messages from telemarketers and debt collectors. The TCPA places restrictions on robocalls (calls from a computerized autodialer) and prerecorded messages made by telemarketers and debt collectors with regard to:
- Cell phones;
- Residential phone lines;
- Text messages; and
- Unsolicited faxes.
More specifically, the TCPA prohibits using an automatic telephone dialing system (“ATDS”) or prerecorded message to contact cell phones unless the recipient has provided and not revoked consent to receive the call or text message. The sole purpose of the TCPA is to reduce the number of nuisance phone calls, text messages, and faxes received by consumers and protect consumers’ privacy rights.
What Is A Robocall?
A “robo call” is a phone call that uses a computerized autodialer to deliver a pre-recorded message, as if from a robot. The most common types of robocalls are often associated with political and telemarketing phone campaigns but can also be used for public-service or emergency announcements.
What Is A Spam Text Message?
A “spam” text message is an unsolicited text message, typically in the form of a business advertisement/discount, promise of free gifts, or product offer, sent to a consumer’s cell phone. The message will usually ask the recipient to reply with personal information in order to claim the discount, gift, or product offer. Clicking on a link in the message can install maleware and other unwanted software viruses that collect information from your phone. Once the sender has your information, it is often sold to marketers or identity thieves. These unsolicited text messages can be particularly burdensome for the recipient because, unlike spam email messages, recipients may be charged a fee for every text message received on their cell phone, including spam.
What Is An Automatic Telephone Dialing System?
An ATDS has been defined as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.” The Federal Communications Commission (“FCC”) has held that a predictive dialer also constitutes an ATDS. When determining whether a system satisfies the definition of an ATDS, the key issue is whether the system has “the capacity to dial numbers without human intervention.” If numbers can be dialed without the assistance of a human being, then the system at issue will likely be considered an ATDS for purposes of the TCPA.
In 2015, the FCC issued an Order holding that “the capacity of an autodialer is not limited to its current configuration but also includes its potential functionalities.” In effect, this means that a systems internal features and capabilities are factored in to the determination of whether the system at issue qualifies as an ATDS. Thus, if autodialing features can be activated or deactivated within the system, or if autodialing features can be added by way of software updates or alterations, such features will be factored into the ATDS determination.
What Constitutes “Consent” Under the TCPA?
Companies that seek to make robocalls and send text messages to consumers must obtain consent from individual consumers before doing so.
Telemarketing Calls
Before a company can lawfully initiate telemarketing or advertising calls or text messages using an ATDS, it must obtain prior express written consent from each consumer that it intends to call or text. The term prior express written consent means a written agreement, signed by the consumer receiving the calls and/or text messages, that clearly and conspicuously discloses that the consumer authorizes the seller to deliver or cause to be delivered telemarketing calls using an ATDS or an artificial or prerecorded voice to a specified telephone number. Additionally, the consumer must be informed they are not required to sign the agreement, or agree to enter into such an agreement, as a condition of purchasing any property, goods, or services.
An electronic or digital form of signature is acceptable, to the extent this form of signature is recognized as a valid signature under applicable federal or state law. Consent obtained in compliance with the E-SIGN Act is satisfactory, including permission obtained via e-mail, website form, text message, telephone keypress, or voice recording. Traditional forms of writing are also sufficient.
Non-Telemarketing Calls
Before a company can lawfully initiate non-telemarketing calls or text messages using an ATDS, it must obtain prior express consent from each consumer that it intends to call or text.
If I Give A Company Express Written Consent, Can I Later Revoke It?
It depends. While a 2015 FCC ruling stated that a consumer who freely gives informed consent may revoke it by “any reasonable means,” a consumer’s ability to revoke express consent depends on the type of contract under which consent was originally given. In a bargained-for bilateral contract, such as a lease of a new vehicle from a car dealership, no revocation would be allowed. If, however, the consent was given in a unilateral contract, such as a credit card application, revocation would be allowed. If you seek to revoke consent, it is best to do so by sending a written letter to the company explicitly stating that you hereby revoke your initial consent and do not wish to receive telephone calls and/or text messages from the company by way of an ATDS.
What Constitutes a Violation of the TCPA?
Calls or SMS Text Messages to Cell Phones
The TCPA prohibits companies/solicitors/telemarketers from using an automatic telephone dialing system (“ATDS”) or prerecorded message to contact cell phones unless the recipient has provided and not revoked express written consent to receive the call or text message.
Calls to Residential Phone Lines
The TCPA prohibits companies/solicitors/telemarketers/sellers from using an automatic telephone dialing system (“ATDS”) or prerecorded message to contact residential phone lines unless the recipient has provided and not revoked express written consent to receive the call. Note: this prohibition only applies to solicitations from telemarketers/sellers with whom the consumer does not have an “established business relationship.” If the consumer has done business with the caller in the past 18 months, or made an inquiry within the past three months, then an established business relationship is presumed.
Telemarketing Calls to Consumers on the “Do-Not-Call Registry”
The TCPA prohibits companies/solicitors/telemarketers from using an automatic telephone dialing system (“ATDS”) or prerecorded message to contact cell phones or residential phone lines of consumers who have registered their numbers with the Do-Not-Call Registry.
Telemarketing or Debt Collection Calls to Consumers Before 8:00 A.M. Or After 9:00 P.M.
The TCPA prohibits telemarketers and debt collectors from using an automatic telephone dialing system (“ATDS”) or prerecorded message to contact cell phones or residential phone lines of consumer debtors before 8:00 A.M. or after 9:00 P.M.
What Should I Do If I Am Receiving Multiple Unsolicited Phone Calls And Spam Text Messages?
First, you should communicate to the party initiating the phone calls and/or text messages that you would like them to stop immediately. Second, it is very important that you document as much information related to the phone calls and/or text messages as possible, including the following information:
- If on your cell phone, take screenshots of all incoming phone calls to document the number(s) and time of call(s);
- If on your residential phone line, take pictures of your caller ID to document the number(s) and time of call(s);
- Make a written record on paper or on an Xcel spreadsheet of the calls you are receiving, specifically recording all call details, including telephone number, date of call, time of call, caller’s name (if provided), and a narrative of the conversation you had with the caller;
- Save all voice mail recordings; and
- If you have sent a letter revoking consent, save a copy of the letter.
What Damages Am I Allowed To Recover Under The TCPA?
Consumers who have received telephone calls, SMS text messages, and/or faxes in violation of the TCPA may file a lawsuit against the company, telemarketer, or debt collector in federal court and may:
- Recover up to $500.00 for each violation (call or text message) or recover actual monetary loss, whichever is greater, plus court costs,
- Seek an injunction, or
- Both.
- Recover up to $1,500.00 for each violation (call or text message) if the court finds that the defendant willfully or knowingly violated the TCPA, plus court costs.
How Much Will It Cost Me To Hire A Consumer Law Attorney To Help Me Put An End To Unsolicited Robocalls and Spam Text Messages?
There is no out-of-pocket cost to you when hiring a consumer law attorney at Fields Law Firm. We offer free initial consultations and our work is done on a contingency fee basis, which means that we advance all your case costs and you do not owe any money for attorney fees or costs unless we win your case.
