Telephone Consumer Protection Act (TCPA) – protects consumers from telephone calls to a cell phone with an auto dialer or prerecorded voices, as well as text messages sent to a cell phone
As a consumer attorney, one of the federal laws that we have found most helpful to our clients is the Telephone Consumer Protection Act or TCPA. Simply put, the TCPA was enacted by Congress in an effort to address a growing number of telephone marketing calls and certain telemarketing practices Congress found to be an invasion of consumer privacy. In 2008, the Federal Communications Commission (FCC) made it clear that this law not only applied to telemarketers, but to any caller using an auto dialer or prerecorded voice to a cellular (wireless) telephone. For this reason, those with business debt as well as consumer debt, equally can benefit from the protections of this federal law. With that said, the purpose of the call does not have to be about debt before a business violates the TCPA.
What this means for my clients is that regardless of the category of debt or other reason a business is calling your cellular phone, if the business is calling your cellular phone with an auto dialer, prerecorded voice, or using text messages, the business is bound by the rules of the TCPA. The TCPA has restrictions for unsolicited faxes, text messages, calls to land lines as well as cellular (wireless) telephones. The prohibition of calling a cell phone with an auto dialer, prerecorded voice, or text message applies regardless of the content of the call, and is not limited only to calls that constitute “telephone solicitations” like it would if the caller were calling a land line. See 47 U.S.C. § 227(b)(1)(A)(iii). See also 137 Cong. Rec. S18781-02, S18785 (Nov. 27, 1991) (Statement from Senator Pressler that “[t]his bill also allows hospitals, police stations, fire stations, and owners of paging and cellular equipment to eliminate all unsolicited calls”).
The TCPA is strict liability. The only way a business using an auto dialer, prerecorded voice, or text messaging service has not violated this law is if you were called with prior consent or the call was made as an emergency (certain entities). If the caller has violated the law, you, as the called party, can bring a Federal action against the business to stop future calls (an injunction), as well as recover $500 per call to your cell phone for violating the TCPA. If, during the course of the action, it is determined the business made its calls to your cell phone willfully OR knowingly without consent, the business’ liability to you may increase from $500 per call up to $1,500 per call. See 47 U.S.C. § 227(b)(3).
The most important thing to remember is that this law applies to everyone. It applies to creditors, big businesses, small businesses, debt collectors, banks, credit card solicitors, everyone. You may think that just because you have a business relationship with someone, that you owe a debt to someone, that this is a business debt, that this fact permits the invasion of your privacy to be called on your cell phone with an auto dialer, sent text messages, or called with a prerecorded voice. This is simply not true. A business must have your express consent to call your cellular telephone or to send you text messages. Keep in mind consent can always be given. However, it can also be revoked.
Therefore, as the called party whose rights are being violated, evidence is the key. First, if a business has called your cell phone with an auto dialer, prerecorded voice, or sent text messages, you should give our lawyers a call right away for a free evaluation of your case. Second, start a call log as it is the most important piece of evidence you can create. Contact our office for a sample to be emailed to your attention. Do not rely on the cellular telephone companies to document your calls since most companies will not give you a list of calls to your cellular telephone.
If you told the business to stop calling your cellular telephone, it is important to document the date, time, phone number, and whom you told. A writing, such as a fax or certified letter, is the preferred method of revoking consent since you have proof of the business’ receipt of your notice. If you verbally revoked your consent to the business, or asked them to stop calling your cell phone, document how the business responded to your request to stop the auto dialed calls, text messages, or prerecorded voices.
If you text STOP and continue to receive text messages, it is important to save each and every text message received after the confirmation text. Certain smart phones have apps that allow you to take photographs of your screen. If you have this ability, it is highly recommended that you go through your text log and obtain a picture of each and every text you received from the business. This allows you to compare with the business’ records each and every time it sent you a text. It further provides you proof that you opted out with the business disregarding your requests to do so.
If you are called with a prerecorded voice or auto dialer and you hit the opt-out button, document the date and time, the telephone number used to call your cell phone, as well as anything you were told in the recording when you tried to opt out. Take pictures of your caller id on the telephone to document each and every call made to your phone by this prerecorded voice or auto dialer.
Regarding any voicemails, keep and back up any and all of them left by the business as this is great evidence to support the type of system the business used to call you with.
Last, keep copies of each and every communication you have had with these businesses. Remember, if the caller willfully or knowingly continues to call you with an auto dialer, prerecorded voice, or sends text messages after you opted out, your damages may increase from $500 to $1,500 per call.
If you have been called by an auto dialer, prerecorded voice, or texted after you opted out, call one of our lawyers at Johnston | Martineau, PLLP today for your free consultation. Let us put our experience and knowledge to work for you.
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