The Telephone Consumer Protection Act
Are you receiving unwanted text message from advertisers and debt collectors? We can stop the harassment!
There are few things more intrusive and annoying than receiving a robocall on your cell phone. The Telephone Consumer Protection Act (“TCPA”) prohibits a caller from making any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system (ATDS) to any telephone number assigned to a cellular telephone service. 47 U.S.C. § 227(b)(1)(A)(iii).
In other words, a caller may not use an ATDS to place a call or send a text message to a cell phone without the recipient’s prior express consent or prior express written consent. The type of consent depends on the nature of the call or text. Some courts have ruled that consent can generally be revoked by any reasonable method.
Prior Express Written Consent requires a written agreement, signed by the person receiving the call or text, with a “clear and conspicuous disclosure” that permits the business to send telemarketing / advertising communications using an ATDS or an artificial or prerecorded voice. The disclosure must also inform the recipient that their signature is not a condition of purchase of any property, goods, or services.
Prior Express Consent is more relaxed and can be written or verbal. Voluntarily providing one’s cellular number also constitutes prior express consent where (1) the individual gives “prior express consent” to be called or texted at the number provided; (2) the person provided their number to the party calling or texting them; and (3) there is some relation between the communications and the reason for which an individual provided their number.
How to determine if the call is automatically dialed or a “Robocall”?
An automatic dialer is an electronic device, software or computer that automatically dials phone numbers without the aid of a live person. There are a several features that indicate that a phone call may be autodialed:
- You answer the phone and instead of a real person promptly greeting you, there is a strange silence or pause of “dead air” before a real person comes to the line.
- If you dial the phone number back, the call will usually be unable to connect.
- You answer the phone and are greeted by a pre-recorded message.
- You receive a text (SMS) message to your cell phone offering you services or products
- You received multiple phone calls from the same phone number/caller
Common TCPA Violations
Receiving robocalls about a person who you do not even know: If you have received or are receiving debt collection calls that are intended for someone else, you may be entitled to compensation.
Receiving robocalls about a friend or relative: If you are receiving a debt collection call about a friend or relative, you may be asking yourself, “how did they get my phone number?” As part of a loan, the friend or relative may have listed you as a credit reference and even included your number in their credit application. Someone providing your cell phone number without your consent does not grant the caller “prior express consent” to robocall you even if you were listed as a “reference.”
Receiving calls about a debt that you owe even after you told the debt collector to stop calling: Even if you think you may owe a debt to the debt collector calling you, that does not mean that you do not have rights. Although providing your cell phone number to the original creditor constitutes “prior express consent” for the creditor and its successors (e.g. debt collection agency) to call you on your cell phone using an ATDS or pre-recorded or artificial voice, you can revoke the prior express consent.
To revoke consent, simply state the following:
“Please stop calling me.”
After revoking consent, you must DOCUMENT this and any phone calls or messages you received on your cell phone after revocation. Make sure to document the name of the creditor, the time and date of the unconsenting phone call, and the exact words you used to revoke consent. Also, save any messages (texts or voicemails) you received from the creditor.
If the calls stop, then you receive the peace and quiet that the TCPA provides. But, if the calls continue and the caller is using an ATDS or prerecorded or artificial voice, then the caller may be violating your rights under the TCPA. At that point, you may want to consult with an attorney to discuss your options, including the recovery of monetary damages.
Monetary Compensation under the TCPA
If you prevail in your TCPA case, you can recover up to $500 per call and, if the violation is willful, up to $1,500 per call. The more times you have to tell a creditor, debt collector, or telemarketer to stop calling you only reinforces your claim that the calls were intentionally made such as to justify the $1,500 per call.
If you have further questions about the TCPA or want to learn more about pursuing a claim against a creditor, debt collector, or telemarketer for violation of your privacy rights, contact the attorneys at the Consumer Justice Law Center today.