The Telephone Consumer Protection Act of 1991[i] (TCPA) restricts telemarketers engaging in telephone solicitations, limiting the use of automatic dialer systems, pre-recorded or computer voice messages, SMS text messages and fax machines. More than 20 years ago when the TCPA was written, our technology did not include smart phones and text messaging features like the ones available today. Over time and recent years the courts have expanded language in the TCPA to consider the use of auto-dialer software in connection with mobile phone and communication technology.
Cell phones are becoming more common as primary phone numbers over land line phones. Telemarketers are able to reach consumers on cell phones much easier than calling them at home on their land line just before dinner. Text messaging to cell phones is also an attractive way to connect with a consumer, when many reports suggest that 90 percent of text messages are read. Today the TCPA protects consumers from telemarketers, collectors, creditors and anyone engaged in sales and marketing from calling and sending us text messages without our consent or being in a existing business relationship.
Consent and existing business relationships are considerations in determining violations of the TCPA.
The law requires a company using automatic dialing software to call or send text messages to have prior written consent, often an element of an existing business relationship with the customer. For example, your cell phone carrier’s service agreements include language where you, the customer gives the cell phone carrier consent to call or text you on your phone. The same language may include an “opt out” provision where you, the customer can withdraw the consent to be contacted. If the cell phone company otherwise did not have your consent, they would violate federal law, the TCPA, by contacting you using an auto-dialer device.
There is a difference between prior express consent and express written consent, which is a higher standard and requirement imposed on marketing firms who want to use an auto-dialer to contact potential customers with offers. Sometimes an auto-dialing system includes the use of a pre-recorded voice message that starts playing when you answer the phone. The TCPA requires an interactive option to opt out of being included on a call list within the first two seconds of a pre-recorded auto-dialed phone call. The next time the phone rings and the voice of a pop culture icon or politician tells you to hold the line for some amazing information, it might be smart to write down the date, time and number that called you and whether you gave anyone consent.
Consumers are encouraged to keep telephone logs and make note of unauthorized robo-calls.
Habitually writing down or keeping a going record of incoming phone calls is a good practice, especially if you want to help catch and stop companies from violating your rights to not be called and messaged on your cell phone or at home on your land line phones. Companies make large profits engaging in telesales and credit collection firms rely on auto-dialers and technology to try and call and reach as many targeted people as possible. If these companies fail to follow the law our phones could be ringing off the hook and being “blown up” by text messages all day and night long. Many times the plaintiffs in TCPA violation cases are part of a larger class of wronged people, and the class action lawsuits with huge jury verdicts matter.
Violations of the TCPA, when auto-dialers are used to contact people without prior required consent are $500 per call, and if and when the violations are willful, the damages may be trebled to $1,500 per call. If a large company buys or otherwise has a list of phone numbers, imagine a seemingly infinite list, an auto-dialer can generate so many phone calls that TCPA damages for violations can be in the billions of dollars. Where there is large profit to be made there is large exposure to liability for not following federal law, the TCPA.
Do you get calls on your phone for other people, or was your number recycled? The TCPA applies to situations in which you might not even realize the caller is violating federal law.
The Zamparo Law Group, P.C. is a consumer protection law and litigation firm that files lawsuits against violators of the TCPA and federal and state consumer protection laws. Teaching consumers how to spot consumer rights violations is important because informed consumers can stand up to those who violate the law. If you have been receiving calls or messages from individuals to whom you did not give consent to contact you, it is possible there is a violation of the TCPA and the attorneys at the Zamparo Law Group are available to talk to you.
To learn more about consumer protection law and the Zamparo Law Group, please visit the firm’s website. You may also ask for a free case review. The Zamparo Law Group is connected on social media, please follow us and share our resources we share on our Facebook page. You may call the Zamparo Law Group with any questions by dialing (224) 875-3202.