The Telephone Consumer Protection Act

The Telephone Consumer Protection Act also known as the TCPA is a Federal Statute that protects consumers and businesses from unwanted telephone calls, text messages, and faxes made using automatic telephone dialing systems, artificial or prerecorded voice messages, and telephone facsimile machines to send unsolicited advertisements.

It is certainly tempting for creditors and debt collectors to use automated technology–“auto dialers” and so-called “robo-callers”–to contact customers regarding past due payments because it allows them to place more calls and reach more customers, and in turn save on costs than they otherwise could by manually placing these calls. However, in the process, a company may unwittingly call a customer’s wireless phone. Perhaps it is a home number that has been ported to a cellular line; perhaps the wireless number was obtained through skip tracing; perhaps it was supplied by the customer as a home number on an application. However, the number was btained, the problem is that such calls may very well be prohibited under the TCPA. Recently, for example, the NFL, NASCAR, Twitter, and even Google have been sued under the TCPA for blitz messaging.

Who Does the TCPA Protect?

The TCPA protects YOU, the consumer as well as businesses. The TCPA was implemented so that your privacy inside your home would not be invaded and to provide privacy rights businesses from shifting their advertising costs to the recipients of unsolicited fax, telephone and text message advertisements; discouraging and preventing unsolicited advertisements over the telephone lines; protecting individual’s privacy in their homes; and providing a remedy to consumers for telemarketing abuses

Bringing a TCPA Claim

To establish a claim under Telephone Consumer Protection Act (TCPA), the plaintiff must show: 1) the defendant used a fax machine, computer, or other similar device to send a fax, text message or call to the plaintiff; 2) that the fax, text message or call was unsolicited; and 3) that the fax, text message or call contained an advertisement. A suit under the TCPA may be brought in either state or federal court. TCPA claims are sometimes joined with parallel state law claims, but state anti-texting statutes typically are more narrowly drawn and therefore more difficult to assert in litigation or are construed co-extensively with the TCPA.

What is Prior Express Consent?

A person who knowingly releases their phone number in effect gives his/her invitation or permission to be called at the number which they have given, absent instructions to the contrary. This is known as prior express consent and is an exception to the rule prohibiting telemarketers from using automated dialing systems to advertise. The FCC defines “prior express written consent” as a signed written agreement that clearly and conspicuously discloses to the consumer that:

• By signing the agreement, he or she authorizes the seller to deliver, to a designated phone number, telemarketing calls using an automatic telephone dialing system or an artificial or prerecorded voice; and
• The consumer is not required to sign the agreement or agree to enter into it as a condition of purchasing any property, goods, or services.

It is important to know that a person can revoke their consent at any time. The revocation does not need to be in writing to be effective and can be made orally.

What are the Penalties for TCPA Violations?

Violators of the TCPA are liable for between $500-1500 per each violation depending on whether the violation was innocent or whether it was “willful or knowing”. Whether a violation of willful or knowing depends on the circumstances and the court will use a common-sense approach to determine this. The TCPA does not specify a limitations period, so the look-back period for damages is four years, unless a state law provides otherwise.

If you have received Unsolicited Text Messages, Robo Calls or Faxes, you should save all of your evidence and then contact me for a case evaluation.