Violations of the Telephone Consumer Protection Act (TCPA)

The TCPA: Protection Against Robocalls and Prerecorded Telephone Calls

The Telephone Consumer Protection Act (TCPA) places limitations on robocalls and prerecorded messages made by telemarketers and financial debt collectors.
Congress passed the federal Telephone Consumer Protection Act (TCPA) in response to an increasing amount of customer complaints concerning telemarketer and financial debt collection agency telephone calls. The primary objective of the TCPA is to minimize the number of nuisance calls. But additionally, and possibly more notably, it works to protect the customer's right to personal privacy.

An automated phone call, or "robocall," is a phone call dialed by a computer. A pre-recorded voice message, on the other hand, is a recorded human-voice message that the agent uses when calling the consumer. The TCPA especially limits the practices of telemarketers and financial debt collection agencies and their use of automated dialing and pre-recorded voice messages with regard to:

  • Mobile phones
  • Household phone lines
  • Text messages
  • Unsolicited faxes

It also limits telemarketers from calling customers who have signed up with the do-not-call computer registry.

What Comprises an Infraction of the TCPA?

The following methods are prohibited by the TCPA:

Calls to Cellphones

The TCPA forbids the use of automated telephone calls, pre-recorded messages, and text messages to mobile phones. The regulation applies to all mobile phones whether used for business or personal use. Essentially, a telemarketer or financial debt collection agency goes against the legislation every time it makes an automatic robocall, pre-recorded message, or text message to a customer's cellular phone unless the customer previously gave the telemarketer or financial debt collection agency permission to call. In cases where approval has been previously provided, the consumer can revoke that approval by alerting the telemarketer or financial debt collector to stop calling the cellphone.

United States Supreme Court Upholds TCPA's Restriction on Robocalls to Cellphones; Overrules Exception for Federal Financial Debt Collection

When the TCPA became law in 1991, the regulation banned "any kind of phone call (besides a phone call designed for emergency purposes or made with the previous express approval of the called participant) using any kind of automated telephone dialing system or an artificial or prerecorded voice" to "any phone number designated to a paging service, cellular phone service, specialized mobile radio service, or various other radio common carrier service, or any kind of service for which the called person is charged for the call." (47 U.S.C. § 227( b)( 1 )( A)( iii)). Then, in 2015, Congress amended the law as part of that year's budget plan bill to include an exemption for phone calls made to acquire on government-owned financial debts.

On July 6, 2020, however, the U.S. Supreme Court struck down the exemption for the collection of financial debts owed to the federal government. (Barr v. American Association of Political Consultants, No. 19-- 631 (July 6, 2020) (2020 WL 3633780)). So, automated calls to cellular phones to accumulate financial debts owed to or guaranteed by the federal government, like student loans as well as mortgage financial debts, are currently prohibited in addition to other robocalls.

Phone calls to Residential Phone Lines

The TCPA bans pre-recorded messages for phone calls made to residential telephone lines. It just relates to solicitations from telemarketers/sellers with whom the customer does not have an "established business connection." If the customer has done business with a telemarketer/seller within the last 18 months or made an inquiry within the last 3 months, at that point it is presumed under the TCPA that the consumer has an established business relationship with that telemarketer/seller.

Telemarketing Calls to Consumers on the Do-Not-Call Computer registry

The TCPA forbids any kind of solicitation calls to those consumers whose phone numbers are registered on the do-not-call checklist. Consumers can put both their mobile phone as well as household lines on the do-not-call registry.
Under the TCPA, telemarketers and debt collectors utilizing an autodialer are also prohibited from various other techniques, consisting of calling the customer prior to 8:00 a.m. or after 9:00 p.m. The agent has to additionally, during any phone call, supply the agent's name, the name of the business entity on whose behalf the call is being made, and a telephone number or address at which the person or entity can be contacted.

U.S. Supreme Court Restricts the Scope of the TCPA in Facebook v. Duguid

Once again, the TCPA bans using any automated telephone dialing system (ATDS) to make non-emergency phone calls or calls without the prior specific consent of the called participant to "emergency telephone line [s]," "guest room [s] or patient room [s] of a healthcare facility," or "phone number [s] appointed to a paging service [or] cellular telephone service." 47 U.S.C. § 227( b)( 1 )( A)( i)-( iii).

The U.S. Supreme Court clarified when it comes to Facebook, Inc. v. Duguid that, under the TCPA, to be deemed an autodialer, the autodialer has to have the capability either to store or to generate a telephone number using a random or sequential number generator. In this instance, Facebook sent Noah Duguid numerous automated text messages without his approval. Duguid took legal action against Facebook for breaching the stipulation of the TCPA, which restricts phone calls placed utilizing an ATDS, or autodialer. The court, ruling in favor of Facebook, determined that due to the fact that Facebook's alert system neither stores nor generates numbers "using a random or sequential number generator," it is not an autodialer.
Various other defendants in TCPA class action cases are likely to use this criterion to argue that the technology utilized to send text messages does not comprise an autodialer and, thus, the TCPA does not apply.

Documenting Proof of TCPA Violations

Customers who are getting calls in violation of the TCPA can take a couple of steps to document the violations.

  • Acquire and preserve all phone records and emphasize incoming telephone calls from debt collectors and telemarketers
  • Make a written record of the calls you are getting, specifically, recording the date of the call, time of the call, caller's identification, and a summary of any conversations held with the caller
  • Keep all voice messages
  • If you have withdrawn your consent to receive telephone calls, keep a copy of the revocation

Damages for Infractions of the TCPA

Consumers that get telemarketing calls, pre-recorded or computerized calls to their cellular phones or residential landlines, may file a suit against the telemarketer or debt collection agency for the infraction of the TCPA.
A consumer can recuperate:

  • Approximately $500 for every infraction of the do not call computer registry
  • As much as $500 per call that goes against the TCPA, as well as
  • Approximately $1,500 per call if the consumer can prove that the TCPA was violated purposefully and willfully

Civil Forfeiture as a TCPA Charge

On December 30, 2019, the Pallone-Thune Telephone Robocall Abuse Criminal Enforcement and Deterrence (TRACED) Act became law. This regulation cracks down on robocallers by broadening the authority of the Federal Communications Commission to impose civil penalties of as much as $10,000 per call for intentional offenses of government robocall legislations, and also lengthens the time period that the Commission can take action to against those who deliberately break government legislation to four years. This fine is in addition to various other penalties for TCPA infractions ($ 500 per violation, $1,500 for each willful or knowing offense). Particularly, the legislation mentions that if done "with the intent to cause such violation ..." TCPA offenses will result in "an added charge not to surpass $10,000.".

Talk with a Legal representative.

If you have more concerns regarding the TCPA or would like to learn more about filing a legal action against a telemarketer or debt collector for a violation of the TCPA, speak with a consumer protection attorney.

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