Tag: unwanted text messages

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.

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Stopping scam and spam phone calls and text messages

Do you receive unwanted phone calls and text messages from strange numbers, day and night? Have you added your number to the National Do Not Call Registry but receive calls anyways? Advances in communication technology and software make it easier than ever for scammers and spammers to inundate you with sales pitches and offers you did not solicit. Many telemarketers use computerized autodialing systems that do not check to see whether your number appears on the National Do Not Call Registry. Being aware of your consumer rights is important. The Federal Trade Commission (FTC) and the Zamparo Law Group can help protect and enforce your rights.

Consumer protection laws generally allow certain types of non-sales phone calls where your permission is not required:

  1. Political subject matter;
  2. Fundraising by charitable organizations;
  3. Individuals and organizations with general information;
  4. Debtors to whom you may owe money;
  5. Surveys from research and business groups;
  6. Individuals and organizations with whom and which you do business.

Keeping track of incoming phone calls is useful when you work to protect the privacy of your phone numbers. Some people pay a surcharge to their phone providers to keep their numbers unlisted. An unlisted phone number however is only as private as you keep it, and by listing that number on websites and social media can open the door to a private number landing on an autodialing call list.

To avoid the risk of more communications, it is a good idea not to return a call to an unwanted spam call made by a live caller or a “robocaller.” Instead, make a record of the call and report a violation to the FTC. You may notice phone numbers that appear many times, and the Zamparo Law Group attorneys may be able to help you take legal action against violators of your consumer rights.

Register with the National Do Not Call Registry and submit complaints of violating sales calls.

It is quick and easy to add your home and cell phone numbers to the Do Not Call Registry by either visiting donotcall.gov or calling 1-888-382-1222. From the website, click the registration link to add your home and mobile numbers to the Registry. You can add three numbers at a time, and your email address, where a verification email will be sent and contain a link to click and finish the process. After 31 days of your numbers being added to the National Do Not Call Registry, you may submit a complaint with the FTC.

Landline and cell phone numbers are added to the Registry quickly and you can use this verification link to make sure your numbers are included. You may also review the Registry to find yours and other phone numbers that may not be called and texted by sellers and telemarketers (note: you will have to register and create a profile to access the Registry).

What to do about unwanted text messages from numbers you do not recognize.

Not everyone has unlimited text messaging and many people pay per text message. It is generally illegal for companies to send you text messages without your permission. However, there are exceptions and it is lawful for an individual or company to send you text messages if you (1) have a prior existing business relationship, or (2) the text is a non-commercial survey or fundraising message.

The FTC recommends you delete unwanted texts, do not engage or respond, do not give out personal information via text, place your cell phone number on the National Do Not Call Registry. Additionally, if you use AT&T, Sprint, Verizon, T-Mobile or Bell, you may forward the unwanted text, free of charge to 7726 (SPAM ). The Federal Communications Commission (FCC) also publishes information about unwanted text and email communications as well as a link to file a complaint online.

Are Debt Collectors are calling you and violating your consumer rights?

This short video by the FTC explains your rights under the Fair Debt Collection Practices Act (FDCPA). A debt collector may only call between 8 a.m. and 9 p.m., and when they do, they may not curse, insult or lie to you, or demand more money than you owe. They also may not claim the paperwork they send you are legal forms if they are not. Debt collectors may not invent consequences for not paying your debt. If your employer does not allow you to receive collection calls at work, the collectors may not contact you there. If you want to exercise your right to stop debt collectors from calling you, you can, and it can be done by sending them a letter.

Attorneys at the Zamparo Law Group can help you fight for your consumer rights and collect damages.

Whether there are statutory damages allowed by law or there is a class action lawsuit you might be able to join, the consumer rights attorneys at the Zamparo Law Group can tell you how they may be able to help you collect damages where the law allows.

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.

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