Basics All About The Telephone Consumer Protection Act

Basics: All About The Telephone Consumer Protection Act

In the past, telemarketers disturbed billions of family dinners with calls at inopportune times. Once they got a phone number, they repeatedly called individuals. Sometimes, they called for legitimate reasons. Other times, telemarketers tried to draw targets into a scam.

Advances in technology made the situation even more untenable. Things were bad enough when a telemarketer used a simple telephone. Telemarketers can now use automatic dialers and can even make robocalls. They suddenly made a much higher volume of calls, repeatedly bothering the same people. The higher call volume made things even more unbearable for people who just wanted telemarketers to leave them alone.

By the late 1980s, outraged consumers were getting tired of the uninterrupted volume of calls. The FCC received over 2,300 complaints from consumers in 1988 (which seems like a small number compared to complaints filed after the law passed, although this was before you could file a complaint online).

By the time Congress took action, telemarketing industry sales had reached $435 billion (measured in 1990 dollars). In some cases, these sales came at the expense of consumer privacy. Congress took note of the situation and sought to pass legislation to protect consumers from these unwanted and intrusive phone calls. Specifically, they passed the Telephone Consumer Protection Act (TCPA).

Many people do not realize their rights under the law regarding unwanted and unauthorized telemarketing calls. If telemarketers violated your rights under the law, you are not powerless. You should discuss your legal rights with an experienced telephone consumer protection act attorney who handles claims under TCPA.

The right legal professional can assess your best options, including negotiations for legal relief or taking formal legal action against a company. Never hesitate to seek a free case evaluation to learn about your rights.

Why Congress Passed TCPA

According to the Senate report that accompanied TCPA,

“The purposes of the bill are to protect the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of facsimile (fax) machines and automatic dialers.”

TCPA gives regulatory authority to the Federal Communications Commission. The FCC makes rules that implement TCPA. They can also take enforcement action against those who violate the law. In addition, the Federal Trade Commission also has the power to regulate the telemarketing industry. The federal government can fine telemarketers who break the law.

Where TCPA Applies

TCPA applies to anyone making a solicitation, including businesses and individuals.

TCPA governs the following types of communications:

  • Voice calls
  • Faxes
  • VoIP calls
  • Text messages

TCPA only applies to things that use telephone-type lines and communications. The law does not apply to emails.

What TCPA Restricts

Here are some of the legal requirements and restrictions in TCPA:

  • Telemarketers may only call you between 8 a.m. and 9 p.m.
  • Telemarketing companies may not dial or text a cell phone where the recipient might incur charges for the call without prior express written consent, and non-marketing auto-dialed calls without prior express consent.
  • The telemarketer must identify themselves by name and inform you of the company they are working for. They must also provide you with information on where you can contact them.
  • Companies must maintain an internal do-not-call registry that lists people who have asked not to be called.
  • Robo dialers should not contact landlines or wireless numbers when the recipient has not given prior authorization.
  • There is a national do-not-call registry of recipients who have asked not to be called in general by any telemarketer.

Federal Government Rules Regarding TCPA

The FCC has made numerous rules regarding TCPA to protect you. Perhaps the most well-known of the FCC’s rules is the National Do Not Call Registry. If you do not wish to receive telemarketing calls, you can put your name on a national list that all telemarketers must check. If a telemarketer calls you when your name is on the registry, they are jeopardizing themselves. Of course, there are some exceptions to the Do Not Call Registry.

These exceptions include:

  • Phone calls where a prior business relationship existed between the company and you
  • Communications from a tax-exempt organization
  • When the recipient has given the telemarketer prior authorization to call

For example, if you are at a fair and fill out a contact card with your phone number, you have given the telemarketer your consent for them to call you. For the conduct to be illegal, you need to revoke your authorization.

The FCC has also instituted the following as part of its rules:

  • Restrictions on the use of auto-dialers to make telemarketing calls
  • Requirements for transmitting caller ID information when telemarketers are making calls
  • Restricting the use of recorded messages in telemarketing calls
  • obtain prior express written consent from consumers before making calls with an autodialer 
  • Require prior consent for telemarketing calls, even when there is a prior business relationship

Amendments to TCPA

  • In 2005, the prohibitions of TCPA extended to junk faxes
  • In 2015, the law changed to prohibit the manipulation of caller identification

The Law and Its Interpretations Change Frequently

TCPA is a relatively new law, and conditions change as technologies improve. In addition, amendments to the law have favored certain industries over others. For example, a recent change in the law relaxed some requirements for financial institutions. In addition, there is now a safe harbor where telemarketers may not face liability for calls to reassigned numbers. An attorney tracks the regulatory and legal landscape that can affect your possible claim.

One example of a significant recent development is the Supreme Court’s decision in Facebook, Inc. v. Duguid. The Supreme Court decision favored the telemarketing industry when it narrowed the definition of “autodialer” under TCPA. According to the Court, an autodialer is the only system that “has a capacity either to store a telephone number using a random or sequential number generator” or “produce a telephone number using a random or sequential number generator.”

TCPA Violations Lead to a Large Number of Lawsuits

Telemarketers can pay a steep price when they violate the law, making for a lot of TCPA litigation. The legislation also allowed private litigants to file their own lawsuits against those who break the law.

Another reason for the frequent TCPA lawsuits is that you can sue several entities in a case. Many companies will hire professional marketers to conduct their campaigns. These companies cannot escape accountability when the telemarketer breaks the law. The company that hired the telemarketer will be vicariously liable for what the telemarketer does. In addition, you can also sue the telemarketer in your case; you may even hold individual executives liable for wrongful conduct.

One might think strict laws should deter telemarketers, but many have not changed their conduct. In the process, they risk facing harsh consequences should recipients take legal action. While the unauthorized calls may not seem to be worth the risk. Companies still break the laws with frequency,

The Number of TCPA Lawsuits Is Increasing

Consumers have been filing these lawsuits in large numbers. In a single recent year, claimants filed approximately 3,000 total TCPA complaints in federal court. In addition, state laws prohibit similar conduct, and call recipients have also filed lawsuits there. For example, New York has its own “mini TCPA” with a much more expansive definition of “autodialer.” In California, telemarketers must have a license to operate in the state. 

If you prove that the telemarketer broke the law, they will be liable automatically. TCPA is a strict liability law, and liability does not depend on negligence. Your attorney can use phone records to prove that the telemarketer broke the law.

Your Damages in a TCPA Lawsuit

TCPA violations are even more dangerous for defendants because they must pay the statutory penalty for each violation. For other laws, such as the Fair Debt Collection Practice Act, the defendant only makes one payment to each individual who experienced a violation of their rights. If you receive many illegal calls from the same telemarketer, their penalties can increase exponentially. Each call made or fax sent in violation of TCPA can result in a $500-$1500 penalty.

The minimum penalty for violating TCPA is $500 per call. However, the law sharply increases the penalties when you can prove that the telemarketer willfully violated the law. In that case, the penalty triples to $1500.

There is no cap on the statutory damages a telemarketer must pay. When debt collectors violate the Fair Debt Collection Practices Act, a class action against them is limited to $500,000 or 1 percent of the debt collector’s net worth. There are no such limits in TCPA lawsuits. The telemarketer has often agreed to a settlement that reaches eight figures.

Class Action Lawsuits for Violations of TCPA

In many cases, TCPA violations will lead to a class action lawsuit since all the victims suffered similar injuries. Major class actions have led to large settlements. While you may not get the full amount of your damages, you can still receive a substantial sum for your inconvenience.

The largest TCPA settlement to date came after claimants filed a large class action lawsuit against Caribbean Cruise Line. The company allegedly made millions of calls to consumers through a robodialer, offering them free trips. Their potential damages might have put the company out of business. The company settled the class action lawsuit for $76 million. Up to one million plaintiffs were part of the class, but not all filed claims. In this case, the settlement allowed plaintiffs to receive up to $500 for each robocall.

There have been other large TCPA settlements in recent years. Companies are reluctant to fight these cases in court because there is often voluminous evidence of the calls, and their potential damages are so high.

However, companies also hire high-powered attorneys to help minimize their legal exposure. They may defend the lawsuit if they spot an opening to help set a helpful legal precedent for the telemarketing industry, such as what Facebook did in the case that went to the Supreme Court.

Why You Need a Lawyer for a TCPA Lawsuit

Accordingly, you need a lawyer for your case. Since these lawsuits are often class actions, much money is always at stake.

You need a lawyer because:

  • Your claim can be worth more when you can prove that the defendant acted willfully
  • The defendant may claim that you waived your right and consented to the calls
  • You may need to negotiate a settlement to the lawsuit
  • Federal courts have very strict rules of procedures that you need to be aware of when filing a claim
  • You may need to subpoena certain records from the telemarketer to help prove your case
  • You may need help to put a stop to the unwanted calls and texts

A TCPA Lawyer Works on a Contingency Basis

It does not cost you anything upfront to hire a TCPA lawyer for your case. Like other consumer protection lawyers, a TCPA attorney will handle your case on a contingency basis. They will receive a percentage of your settlement based on the terms of the representation agreement that you signed with them when you first hired them.

You do not need to pay any retainer fee, nor do you need to pay any hourly fees while your case is pending. If you do not win your case, you will not owe your lawyer any money for their services.

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