TCPA Telephone Consumer Protection Act
What is the TCPA Law?
TCPA is an abbreviation for the Telephone Consumer Protection Act. The law was created in 1991 to restrict telemarketing calls, robocalls, spam texts, and junk faxes. It includes specific restrictions on automatic dialing systems and artificial or prerecorded messages. It also includes a provision giving consumers the right to sue businesses who violate the law, and it sets out how much the violators must pay for each call violation.
The Federal Communications Commission (FCC) is the agency that creates rules to implement the TCPA law. The agency revises its rules over time. For example, in 2003, the FCC helped establish the national Do Not Call Registry so consumers can put their phone number on a do not call list that telemarketers have to respect.
The Telephone Consumer Protection Act (TCPA) is one of the core consumer protection laws in our current world. We all have had the experience of getting those annoying calls at all times of the day. This is essentially a form of privacy invasion. The TCPA gives us the power to fight back and hold the robocallers responsible and make them pay for our frustration.
The TCPA is a fairly complicated law. You can find a link to the full law here. It is 47 U.S.C. § 227. The main provisions of the law that might affect you are listed below. The TCPA prohibits the following types of calls (unless you gave them consent to make these calls to you):
- Cell Phones
- Telemarketing or other calls or texts to cell phones made with an automatic telephone dialing system (ATDS) or using an artificial or prerecorded voice.
- Telemarketing calls to landline phones using an artificial or prerecorded voice.
- DNC Registry
- Telemarketing calls or texts to landline or cell phones registered on the National Do Not Call List.
The TCPA law gave the FCC the power to create and revise rules regarding the application of the law. The FCC revises and adds to its rules from time to time. For example, the do not call violations were not written into the original TCPA law of 1991. They were added by the FCC as TCPA regulations later, in 2003.
When a caller violates any of the prohibited call types listed above, then they have violated the TCPA. The law sets out money fines for each call and gives you the right to file a TCPA lawsuit to recover those monetary damages or fines. The law states that you can recover your actual monetary damages or $500 for each call. Usually, the $500 will be more than your actual monetary damages. You may also be able to receive $1,500 per call instead of $500 if you can show that the defendant caller willfully or knowingly violated the TCPA when they called you. Showing a willful violation of the TCPA is something you probably need help with from an experienced TCPA Lawyer.
TCPA Demand Letter
There are a lot of websites out there with “free TCPA demand letter” templates. They tell you that you can just send the business who is calling you a letter to get them to pay you damages. That might work sometimes, but most of the time the company will offer you pennies on the dollar or refuse to make any kind of TCPA settlement with you. In most cases, you will need to file a lawsuit with the help of a TCPA lawyer in order to get the business to take your claim seriously and pay you.
The TCPA law has a private right of action. That means it empowers you to sue businesses or individuals who violate its provisions. We find that a TCPA lawsuit is usually necessary to get a business to pay you the damages they owe you. A TCPA lawsuit is a civil lawsuit filed either in state or federal court. Your attorney will determine which is the best court to file your particular case. Once the case is filed the process of formal discovery takes place. In that process, both parties, the plaintiff and the defendant, are called on to trade information about the facts of the case. This is where the evidence you have collected prior to filing the suit comes into play.
Evidence You Should Collect to Help Your Case
You will have to prove a few things to win your TCPA case. That’s why it is critical that you start collecting evidence as soon as you get the illegal calls or texts.
- Call Logs: take notes in the form of a call log. Write down the date and time of all the improper calls you receive. Write the number who called you. And write down if they played a pre-recorded message. Take note of what they are calling about. Are they trying to sell you something, collect a debt, or whatever it is they say.
- Screenshots: If they’re calling you on your cell phone, you should save all the call logs on your phone. Take screenshots and save them somewhere else, like on your computer. That way, if they get erased on your phone, you still have the records.
- Voicemails: If they leave any voicemails, don’t delete them! Keep them on your phone and back them up to your computer or another device as well.
- Do Not Call List Registration: Download a copy of your registration with the do not call list registry.
A TCPA settlement is when the company decides to offer you money to settle your case before a final verdict is reached in a TCPA lawsuit. Often, if you have a good case, the company will want to end the litigation before going all the way through trial. Trial is expensive and time-consuming. They have to pay lawyers to represent them during all those stages. So, if you have good evidence, they will probably offer you a settlement to end the lawsuit. Your attorney will advise you of any settlement offers and on whether the offer is good or not.
The main telemarketing laws that can help you with annoying calls are the Telephone Consumer Protection Act (TCPA) and the Telemarketing Sales Rule (TSR). The TCPA is usually the correct law to use to hold robocallers responsible. It has a more workable framework for getting damages per call, whereas the TSR requires a minimum of actual damages of $50,000 in order to file a suit.
Telemarketing calls are the most frequent, and thus most annoying types of calls people receive. But the TCPA doesn’t just apply to telemarketing calls. It also applies to debt collection calls, which are also a big problem for many people. The way the TCPA works is slightly different for telemarketing and debt collection calls. The main difference is the issue of consent. Autodialed or prerecorded calls by telemarketers require prior written consent to receive such calls by the person being called. Autodialed or prerecorded debt collection calls, on the other hand, only require “express” consent. Express consent is the kind of thing that courts define differently in different situations. So, there is no clear cut definition of it. Some courts have found that giving your number to the original business then gives a debt collector “express” consent to make these calls to you. Other courts find the opposite to be true. In any case, you always have the right to tell these callers to stop calling you. Afterwards, any autodialed or prerecorded calls they make to you are TCPA violations.
Do Not Call List
You can register your phone number on the do-not-call list by calling 888-382-1222 or by visiting the National Do Not Call Registry website. This is a critical step in protecting your privacy and in setting up a potential TCPA case. That’s because the TCPA gives you an additional right to sue for damages if you are on the DNC list (Do Not Call List). If you are not on the DNC list, you can only sue under the TCPA if they use and automated dialing machine or play a pre-recorded voice. However, if you are on the do not call list, you can sue them just for calling you. They don’t have to use an automatic dialing system or play a recorded message for you to sue them if you’re on the DNC list.
Note that do not call list suits only work for telemarketing calls, which are any call where they are looking to sell you a good or service. It doesn’t apply to debt collection calls. Also, the DNC List provision does not apply to business phones. So, you can only make a DNC List claim if they are calling your personal phone, not your business phone.
There is also the issue of consent. If you have an established business relationship with the business calling you or if you consented to receive their advertisements, then you won’t have a do not call list violation case. However, you can revoke that consent at any time, even if you continue to do business with the company. If you revoke consent, any call they make afterwards will be a violation you can recover money for.
What is a Robocall?
A robocall is a call made with an auto-dialing system that delivers a pre-recorded message. Many robocalls are scams, where the caller is fishing around for people to defraud. The software systems used by robocallers allow them to call millions of numbers a day. They play the recorded message in the hopes that they can trick you as to who they are. If they find someone who stays on the line long enough, they will try to get that person’s personal information so they can steal their money or identity.
Many legitimate businesses also place robocalls. They may do this to market their products and services or to give you information about an upcoming appointment or something like that. Even if they are a real business, the TCPA law applies and makes it illegal for them to robocall you without proper consent.
Spam calls are just another commonly used name for robocalls. One useful tip if you are getting unwanted robocalls or spam calls is for you to not answer the calls. If you answer, their computer system identifies your number as a good number for them to call. That means they will start to call you even more.
Spam Text Messages
Spam text messages are those awful messages you get from businesses or fraudsters that have clearly been sent to millions of people just like you. Don’t click on the weblinks that are in the spam text messages. They could send you to a dangerous link that will let them defraud you or put a virus on your device. Beware of spam texts.
Spoofing is a scam where the criminal disguises their identity to appear to be someone else. Spoofing often occurs in emails, texts, phone calls, and websites. For example, a fraudster can user caller id spoofing so that when they robocall you, the number that appears on your phone is located in your area code. However, the caller is really calling from their software in some other place, usually not even in your state. They do the same thing with text messages. Another spoofing scam is where they send you an email with an email address that looks really similar to a major business you know of. However, if you look closely, there are usually a few characters out of place, since they are not really emailing from that business. Never click on the links on these spoofed emails, if you do you might end up downloading malware or a virus onto your device.
The Federal Trade Commission enforces federal consumer protection laws to prevent fraud, deception, and unfair business practices. You can report fraud to the commission for them to investigate. However, they will not recover damages for you under the TCPA. If you want to pursue money damages for Telephone Consumer Protection Act violations, you should contact a TCPA lawyer. To report fraud to the FTC, go to their website here.
Autodialer Claims - Facebook vs. Duguid
The TCPA suffered a setback in 2021 in the Facebook v. Duguid case. In that case, the Supreme Court ruled that to qualify as an automatic telephone dialing system (ATDS) under the Telephone Consumer Protection Act, a device must have the capacity either to store, or to produce, a telephone number using a random or sequential number generator. The TCPA was written in 1991, and the technology used by robocallers has changed. The Supreme Court refused to extend the 1991 definition of ATDS technology to the types of systems used today. This ruling limits the TCPA somewhat. Before the ruling, you would have a TCPA case even if the caller did not play a prerecorded message, if you could prove that they used an autodialer. Now, you usually can’t succeed in just proving they used an autodialer. Rather, you will be limited to calls that play a prerecorded message. Note, that this ruling does not affect claims for calls if you are on the Do Not Call List. For those calls, it doesn’t matter if they play a prerecorded message or use an autodialer.
VOIP stands for voice over internet protocol. VoIP calls are calls that are made with an internet connection instead of over a landline or through a cellular provider. VOIP service can operate completely separately from traditional public phone networks, if both parties are using VOIP. For example, a Skype call would be like that. Or VOIP can be used with a telephone number where the internet transmission is linked up to an actual phone, wired or cellular. Many companies will provide you with a free number and free VoIP calling. So, you may have a VoIP number.
The question is: Does the TCPA apply to VoIP? The short answer is yes. The long answer is that this depends a bit on what federal court district you are in and whether your VOIP number is something you pay for or whether it is linked with a cell phone. In most cases, we can argue successfully that the TCPA applies to calls to your VOIP number.
Florida Mini-TCPA Law
Florida passed its own “Mini-TCPA” law in July of 2021. The law is a response to the U.S. Supreme Court’s decision in Facebook, Inc. v. Duguid et al. which limited the viability of automated dialing system claims under the TCPA. The Florida TCPA has a more expansive definition of the kinds of automated dialing systems that are illegal. The Florida Law is statute 501.059. The law only applies to sales and telemarketing calls made to a Florida resident. The fines are the same as the TCPA fines, $500 per call and $1,500 per call if the violations were willful. The law also awards attorney’s fees and costs to the prevailing party. The TCPA and the Florida TCPA do not conflict with each other. So, if you’re a Florida resident, you can make a claim under both laws.
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