Tag: robo calls

Telephone Consumer Protection Act in news and courts

Victoria’s Secret and the United States Supreme Court (“SCOTUS”) made recent news in connection with the violation and litigation of the Telephone Consumer Protection Act (“TCPA”). The TCPA is one of the lesser-known federal consumer rights laws. Many consumers know they have rights when it comes to phone calls and text messages, beyond a do-not-call list. In fact, consumer’s rights are easy to learn and violations are easy to spot when you know what to look for. The TCPA restricts telemarketing calls and the use of automatic dialing systems, prerecorded voice messages, text messages and faxes. The restrictions protect consumers from unsolicited advertisements and individuals with whom we do not otherwise have an established business relationship. Violations of the TCPA are often litigated in class action lawsuits and a recent SCOTUS opinion better protects plaintiff consumers.

Victoria’s Secret customers may be more cautious when agreeing to receive the company’s ad texts.

The TCPA restricts how a company such as a clothing retailer may contact and communicate by text messaging. Consider the variety of occasions in which your favorite store could obtain, verify and retain your phone number. The click-wrap text at a point-of-sale purchase could include language in which you agree to receive a single or limited number of text messages to receive offers and information. What happens when you opt-in and consent to receive special deal texts, and you get more than you expected?

Victoria’s Secret is the named defendant in a proposed class action lawsuit for over texting. The plaintiff, a man from California alleges Victoria’s Secret violated the TCPA when it sent him just short of 100 text messages in one day. The opt-in message agreement the plaintiff entered into with the retailer was to receive no more than six text messages a month. The automated telephone dialing system used by Victoria’s Secret sent the plaintiff 97 text messages on one day in November 2015.[i]

The restrictions of the TCPA apply to a text messaging ad campaign.

The law generally prohibits phone calls to people, made by automatic telephone dialing systems or an artificial or prerecorded voice. There is an exception to the TCPA, if the call is placed for an emergency purpose or the caller has the prior express consent to initiate what some call “robo-calls.” The prior express consent element of the exception may be derived from the underlying existing relationship with the caller, such as between bank and credit card holder or cell phone provider and customer. In various communications sent to us by our service providers and banks, we might find fine print, which says we consent to receiving text messages when we agree to an offer or simply continue using the service.[ii]

Going beyond the limits of the consumer’s consent may violate the protective restrictions of the TCPA. The California plaintiff has a right to a private action against Victoria’s Secret and may be able to recover for any actual monetary loss in connection with the TCPA violation, as well as a statutory amount of $500 for each violation. If the plaintiff can prove that Victoria’s Secret willfully or knowingly violated their opt-in agreement and the TCPA, the court may award triple the damage award.[iii]

Class action litigation in TCPA cases and the recent SCOTUS landscape opinion.

SCOTUS
Supreme Court of the U.S.

The U.S. Navy contracted with a marketing company to send text messages to 18 to 24-year-olds who opted-in to receiving text messages. The company allegedly exceeded the scope of its op-in list of recipients and messages were sent to unintended recipients, well beyond the recipient age range limits.

In the Navy case, a full settlement offer was made to a named plaintiff, and the SCOTUS ruled that the defendants cannot rely on a settlement offer to one plaintiff, to argue that the claims of that plaintiff are then moot, because of the settlement offer, and seek dismissal of those claims. The SCOTUS relied on contract law principals to conclude that unaccepted settlement offers and unaccepted offers of judgment do not deprive a plaintiff of their interest in a lawsuit.[iv]

Companies defending against TCPA class action suits could previously expect to attempt to defeat a subject class action by offering a full settlement to the class representative. Under the new SCOTUS ruling, an unaccepted settlement offer will not prevent a consumer plaintiff from continuing to prosecute their claims against the TCPA violator, in individual and class action litigation.

Telemarketers using auto-dialers to call and text you their advertisements expect you to do nothing when they violate the TCPA. Prove them wrong. The Zamparo Law Group can help.

Zamparo Law GroupThe Zamparo Law Group, P.C. is a consumer protection law and litigation firm, representing consumer plaintiffs harmed by telemarketers violating the TCPA and other similar federal and state laws. Zamparo Law Group in the northwest suburbs of Chicago sues and wins against the companies who refuse to follow the law and instead, use illegal tactics to market their products and services.

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 FacebookTwitter and LinkedIn pages. You may call the Zamparo Law Group with any questions by dialing (224) 875-3202.

 

[i] Data Privacy and Security Insider, Victoria’s Secret hit with TCPA class action for text messages, by Kathryn Rattigan, Feb. 2, 2016.

[ii] Telephone Consumer Protection Act 47 U.S.C. § 227 (b)(1), Restrictions on use of Automated Telephone Equipment

[iii] Telephone Consumer Protection Act 47 U.S.C. § 227 (c)(5), Private Right of Action

[iv] U.S. Supreme Court Campbell-Ewald Co. v. Gomez, No. 15-857 Decided January 20, 2016.

Advertising Material

Automatic telephone dialers, consent, business relationships and the Telephone Consumer Protection Act

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.

 

[i] The Telephone Consumer Protection Act, 47 U.S.C. § 277

Advertising Material