TCPA Defense Attorney – Consumer Telephone Protection: Protecting Against Robocalls & Telemarketing
Have You Been Sued For TCPA Violations? If you have been sued for TCPA violations, contact us today to discuss how we can help you by submitting your contact information through our website or calling us.
In 1991, Congress enacted the Telephone Consumer Protection Act (TCPA) in an effort to address the emergent marketing calls.
The TCPA restricted companies from making marketing telephone calls as well as the use of making calls that were automatic in nature and/or pre-recorded.
Protecting Against TCPA Violations, Robocalls and Telemarketing Harassment
The 1991 Act enforced these rules on both regular carriers and marketing companies. Shortly thereafter, the Federal Communications Commission adopted guidelines and regulations that would implement the TCPA.
This included but was not limited to requiring that companies who make solicitations via telephone calls institute policies for their company-specific “do not call” lists.
The following highlights some of the most important factors any person should consider when it comes to protecting against telemarketing and robocalls.
A Precursor to TCPA Violations – TCPA Lawyers’ Definition of a Robocall
Prerecorded and even autodialed phone calls, which are made to a person’s landline and/or cellphone and are usually made without the person’s consent, are known as robocalls.
Robocalls are usually made by marketing companies known as telemarketers.
The main intent of these types of phone calls is to market or sell a person a product of a service. Usually telemarketers will call at random and without warrant.
It is important to note that robocalls also include other unsolicited types of phone calls than that of telemarketers.
Robocalls can also include debt collection agencies.
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How to Determine If the Call is Autodialed as a Basis for a TCPA Violation
There are a few ways to determine that a phone call is autodialed:
- Receiving more than four phone calls from the same caller
- Receiving more than four voicemails from the same caller
- Answering a phone call with no person on the other end, rather, a recording or some form of computerized voice
- Answering a phone call with no person and/or recording on the other end
Understand the Options Available Under the TCPA When a Violation Occurs
A person who is being harassed by unwarranted phone calls can take a few precautions. The following list highlights some of the most common methods a person can protect his or her self from unsolicited phone calls.
1. If there was any form of given consent, revoke the consent as soon as possible.
The Federal Communications Commission has set strict guidelines in regard to consensual phone calls. One of these guidelines is that there must be written consent from a person to a caller in order for the caller to be able to make any form of robocalls. If a person has previously given consent for these sorts of calls, the person can revoke his or her consent. In the event that the caller refuses to uphold the withdrawal, speaking to a TCPA lawyer can be beneficial. An attorney can help the person find another method of discontinuing the harassing phone calls.
2. Withdraw from telephone calls coming from a specific caller.
Under the rules and regulations of the Federal Communications Commission, callers are also required to give people the option to withdraw from receiving any future automated telephone calls. This feature is commonly stated during the automated list of options.
3. Adding Oneself to the National Do Not Call Registry.
There are a couple of ways in which a person can add his or herself to the National Do Not Call Registry.
- — By visiting the Federal Trade Commission’s National Do Not Call Registry website, any person can register to reduce the number of telemarketing calls he or she receives regularly.
- — Individuals can also call (888)-382-1222, a phone number that is also posted on the National Do Not Call Registry website.
By registering to the list, individuals disallow telemarketers from calling them and can being to see the results in about 30 days. It should be noted that registry to this list, while disallowing sales calls, it does not prevent the calls from other sorts of businesses.
More importantly, it does not hinder the calls from debt collectors.
Speak to a Qualified TCPA Lawyer Regarding a TCPA Violation
These can be frustrating and can be the basis of unwarranted stress and are seen in many forms:
1) Unsolicited calls
2) Pre-recorded calls
3) Autodialed calls
The amount of harassment can cause any person distress, contacting an experienced consumer protection attorney can be a guide through the process of filing for a claim against the company causing the aggravation based on one or more TCPA violations.
As well as utilizing the three options to the left, you can also reach out to a TCPA attorney today. Our team of personal injury lawyers can assist you today.
Understanding the Telephone Phone Consumer Protection Act and its Violation Provisions
What is the TCPA?
Understanding the basis of the Telephone Consumer Protection Act is important for just about any person.
Rules and regulations, which implemented the Telephone Consumer Protection Act, went into effect in the year 1992 and were thereby established by the Federal Communications Commission.
The TCPA has established a limit on unwanted telemarketing calls, which have been previously recorded, to any person’s home telephone.
The TCPA has also prohibited the following to be made to a person’s cell phone:
- Autodialed phone calls
- Pre Recorded phone calls
- Text messages (also known as an SMS text message)
What is Restricted?
As a cellphone or landline phone call recipient, it is important to note that under the TCPA, unless proper authorization has been given, companies that call with the intent to sell are restricted to the following:.
1) Calls cannot be made before 8 a.m.
2) Calls cannot be made after 9 p.m.
3) In the event that a phone call receiver has chosen to opt of the seller’s calls or has otherwise chose to add his or her name to a “no-call” list, the caller cannot make phone calls to this person
4) Unwanted fax messages cannot be sent to a person’s home and/or office location
5) The caller cannot refuse to provide the following information:
a. The name of the company or individual on whose behalf the caller is calling from
b. The contact information of the company or individual
How Can You End the Calls?
Note: If you or someone you know is being harassed through unwarranted phone calls such as debt collections pursuing debt collection efforts, contact the support of a qualified and experienced TCPA attorney, versed in TCPA lawsuits.
An attorney who has experience in this field can help you understand your options as well as guide you through the process of making a claim against the person or company making the phone call.
Unsolicited phone calls should never be a cause for stress and anxiety, contact a proficient attorney who can champion on your behalf.
If you or your company have been sued for alleged TCPA violations, contact an attorney today for a free consultation by submitting your name and telephone number here.
Consumers are increasingly becoming aware of their rights with regard to telephonic communication and privacy, known as the Telephone Consumer Protection Act (TCPA). Here is more information on TCPA cases of violation.
The Telephone Consumer Protection Act (TCPA) established in 1999, provides consumers with the ability to sue for any unsolicited advertising call, message or fax when made through an automated telephone dialing system (ATDS) or by using pre-recorded messages. Since communication with customers has become heavily dependent on mobile technology, most businesses find themselves at the risk of violating the TCPA.
In 2015, The Federal Communications Commission (FCC) released an Omnibus Declaratory Ruling and Order which clarified many terms regarding the law. Since then, there has been a substantial spike in TCPA lawsuits. The U.S Chamber Institute for Legal Reform conducted a study of sources and targets of TCPA lawsuits between August 2015 and December 2016. It found that over 3,121 TCPA cases were filed during this period.
Most of the TCPA cases of violation result in lawsuits that are class action litigations. These involve a large set of consumers — often in millions — who are affected by the company’s TCPA violations of the law. These cases are more likely to win than lawsuits that are filed by individuals. They also cost the company more in statutory damages.
For a class action lawsuit, the claim must affect multiple individuals (for instance, robocalls as part of a new ad campaign) and should not be an odd case. The class members need to also have similar claims and situations. For instance, if the plaintiff has not provided prior express consent, potential class members should also have not provided prior express consent. Hence, many people may submit claims during a class action lawsuit but only a few may be valid.
5 Prominent TCPA Cases of Violation
While TCPA violation lawsuits (class action lawsuits, in particular) are on the rise, there are a few cases that have managed to grab public attention due to a large amount of settlement or the company’s name itself. These lawsuits tend to tarnish a company’s image and make consumers hesitant about establishing any business relationship with the concerned company. Listed below, are some of the cases that have managed to make headlines:
1. Capital One
Several lawsuits were consolidated in 2014 to charge Capital One and three other companies, with a high cash settlement of $75.5 million. Capital One Financial Corp. (along with three debt collection services) was accused of making multiple calls using an ATDS to collect credit card debts. These calls were made without prior express consent and were hence violating the TCPA.
While Capital One contributed $73 million to the settlement fund, the three other defendants – Alliance One Receivables Management Inc., Capital Management Services L.P. and Leading Edge Recovery Solutions, LLC were charged a total of $2.5 million. All the defendants were further instructed to ensure their telemarketing practices were in compliance with the TCPA.
2. Wells Fargo
Wells Fargo has fallen prey to multiple TCPA violations over the past few years. In 2016 (Markos v. Wells Fargo) they were accused of calling consumers using an automatic telephone dialing system (ATDS) without the consent of consumers. The calls were non-emergency, debt collection calls and texts made between November 2011 and February 2016. Wells Fargo decided to settle the lawsuit for $16.3 million. The class action, consisting of over 3 million class members received $25 to $75 each.
Another case disregarding the consumer’s prior express consent was Cross v. Wells Fargo in 2016. Here, the company settled for $30 million for automated calls made to consumers regarding deposit accounts. This pattern continued in 2017 as well. The company agreed to settle two class action settlements in February 2017 — Prather v. Wells Fargo Bank and Luster v. Wells Fargo Dealer Services, Inc. et. al. The former is concerned with calls made using an ATDS to student loan borrowers between April 2011 and December 2015. It was settled with the plaintiffs for $2 million. The latter was a case of debt collection robocalls, made to consumers who had not consented to receive calls made by an ATDS. The company paid a settlement of $15.7 million to the 3.38 million class members.
3. Dish Network
In a historic TCPA violation lawsuit, Dish Network was charged a $280 million civil penalty for placing illegal robocalls to numbers on the National Do Not Call Registry. Four states — California, Illinois, North Carolina and Ohio along with the Federal Trade Commission (FTC) sued Dish Network in March 2009. Aside from calling numbers on the Do Not Call list, they were also accused of using telemarketers to deliver pre-recorded messages. They were charged with violation of TCPA and the states’ telemarketing laws.
According to the TCPA, each violation (call) must be charged $500. This would have amounted to a penalty of $8.1 billion. However, the court exercised its discretion and charged the company with 20% of its profits in 2016. It also imposed a 20-year plan for supervision of the company’s telemarketing. Dish Network was keen that the third-party telemarketers not only exercised their own independent efforts of telemarketing but also intentionally hid them from the company.
4. Time Warner Cable
In a case of reassigned numbers, Time Warner Cable had to cough up $229,500 for harassing a woman with 153 calls made using an ATDS. In the case King v. Time Warner Cable, the company continued calling the plaintiff multiple times and left pre-recorded messages about unpaid bills. The calls were intended for a consumer of TWC, Luis Perez who had consented to receive such calls. However, as the number was reassigned to King, she became the “called party” and hence the violation of TCPA was recognized.
Further, King requested for the calls to stop and clarified her identity. In March 2014, King sued the company. However, she continued receiving these robocalls. The 74 calls that took place after this were considered by the court as willful violations of the law. Each of these violations were charged $1,500.
5. American Eagle Outfitters
American Eagle Outfitters (AEO) was accused of sending unauthorized spam messages to over 600,000 consumers. Christina Melito and three other individuals filed a case alleging TCPA violation in April 2014 against AEO. A class action against the retail brand was brought to the federal court in New York. Experian Marketing Solutions, a third-party messaging service hired by AEO, was also accused in the lawsuit. Although the allegations were denied, AEO agreed to a cash settlement of $14.5 million. The class consisted of over 38,000 valid claims and its members would receive approximately $232 each.
Experian Marketing Services raised objections that the plaintiffs could not sufficiently demonstrate that they suffered a concrete injury due to the spam messages, and thus lack Article III standing. However, in 2017, the court ruled that alleging a statutory warning was sufficient to establish concrete injury. The invasion created by automated spam messages and calls was the reason the TCPA was established. The court found that showing the proof of receiving unwanted telephone contact was enough to establish concrete injury.
Precautions for Business
To ensure your company does not become the next target of a TCPA class action lawsuit, it is advisable to take certain precautions to ensure compliance with TCPA. Based on prior TCPA cases of violation lawsuits, there are three major things that can protect your business from an expensive lawsuit:
- Consent: Most TCPA violations occur due to lack of prior express consent. Sometimes it is possible to prove “implied consent”. However, a consent form explicitly requesting permission to contact the consumer with automated calls can help your company avoid millions of dollars in damages. The consent form needs to be clear and unambiguous so that it is considered valid in court. It needs to have the signature of the consumer along with the telephone number that can be called.
- Documentation: In some cases, the inability to produce evidence or records of compliance can be a costly mistake. Documenting consent as well as the processes of making automated calls can be handy when fighting allegations of TCPA violations. This includes records of formulating lists of numbers to contact, how these lists are scrubbed and so on. Established and detailed records documenting your TCPA compliance efforts will not only avoid a violation but can also serve as competent evidence in a lawsuit.
- DNC: Finally, the most important aspect for companies is to ensure they consider the National Do Not Call Registry for numbers that cannot be contacted by autodialers. There may also be state-specific or company-specific lists that can be consulted to scrub for numbers that are off-limits. This step is crucial for any company or third-party telemarketer.
These suggested precautions only serve to be preventive measures. For a more effective solution, an attorney can be consulted to help you tackle your case. Whether you are a business that is looking to enforce TCPA compliance internally or a victim of unauthorized robocalls, our firm is experienced in the nuances of the TCPA cases. Contact our team of attorneys to help you find the best legal step forward.
What Is the Telephone Consumer Protection Act?
If your afternoons are not being disrupted by banks offering loans and telecom companies insisting you invest in a new plan, it is because of the protection offered to you by the Telephone Consumer Protection Act.
The TCPA restricts all kinds of bogus telemarketing communications, via calls, SMS or even fax.
Under the Telephone Consumer Protection Act, all telephone solicitation and the use of an automated phone dialing system is restricted, preventing the harassment of consumers who have not consented, through pre-recorded messages, automatic dialing, SMS and fax.
No company is allowed to violate the consent of consumers who subscribe to the National Do Not Call Registry. Companies that are found in violation of the Act are liable to monetary punishment.
Origins and Summary of the Act
The TCPA became a law in the year 1991 after the Communications Act of 1934 was amended. It was put in place after an increase in unsolicited telemarketing calls, messages and faxes.
Once the TCPA was passed, the Federal Communications Commission introduced regulations that shaped the Do Not Call Registry. To begin with, every company and organization was expected to maintain their own directory of consumers who had ticked the ‘Do Not Call’ option.
These individual databases eventually gave way to the National Do Not Call Registry in 2003. Maintained by the Federal Trade Commission, the Do Not Call Registry is open to both cell phone and landline users.
The portal accepts registrations at donotcall.gov.
What Does the Telephone Consumer Protection Act Protect?
The Act has been put in place to protect the consent of all consumers on the Do Not Call Registry. FCC regulations are entitled to impose financial penalties or fines on commercial organizations and telemarketers for calling phone numbers on the Do Not Call directory.
For the numbers that are not registered on the directory, the FCC regulations allow for only a certain number of abandoned calls. The Commission also demands telemarketers to transmit caller identity details.
How to Identify Auto Dialer Calls
If you have been receiving over four calls or voicemails on a single day from the same number, the telemarketer is using an auto dialing service. Similarly, if you receive a call and only hear a recorded message, it’s a robocall, meaning one that has not been made manually. A call where no one speaks on the other end is also a sign of a robocall.
Declaratory Ruling and Order of 2015
Since its inception in 1991, the Telephone Consumer Protection Act has seen several changes and modifications. In July 2015, the TCPA was formally amended and made more defined and detailed.
The Declaratory Ruling and Order of 2015 was born out of this amendment after acknowledging and addressing several consumer petitions for clarity on the TCPA’s terms and how it is interpreted by the FCC.
The following are some of the important highlights of the ruling:
- Telemarketers are prohibited from using automated dialing to reach a wireless phone and leave a pre-recorded message without consent.
- Consumers are entitled to retract consent or permission to be contacted by telemarketers via calls or SMS at any time and in any ‘reasonable’ way.
- Telecom service providers can add robocall blocking services in consumer plans.
- If a previously consenting consumer’s number has been reassigned, callers are prohibited from calling the reassigned number unless consent is explicit.
- Consent is still explicit if a person transfers the number from a landline to a wireless service.
- Callers are provided with an emergency option in case of urgent messages, such as intimating the consumer about potential fraud or reminder to fill an insurance premium or medication requirement. But while doing so, the caller must also provide the consumer with a way to opt out.
What Is Covered in the Do Not Call Registry?
The FCC regulations have expanded their wings to include banks, insurance companies, credit unions, and savings associations.
The Commission regulations also have a counterpart in FTC’s telemarketing regulations, which cover all other business organizations and entities.
This includes third parties acting at the behest of a financial institution.
The regulations also cater to unsolicited facsimile advertising or telemarketing approaches via fax.
These regulations were later consolidated into the Junk Fax Prevention Act of 2005.
What Are Some Important Keywords to Remember?
The Telephone Consumer Protection Act is a long and complex document that has been amended a number of times over the years. The TCPA, therefore, deals with a few technical terms.
The following is a helpful glossary to weed through the jargon and understand some important keywords:
- Unsolicited Advertisement: Any attempt to advertise the commercial availability of a product, property or service to any person without the explicit permission or invitation of the said person.
- Abandoned Call: If a telephonic call is not transferred to a live agent after two seconds of the receiver’s entire greeting, it’s an abandoned call.
- Residential Subscriber: Any person in a signed or verbal contract with a common carrier to provide telephone exchange service at a personal residence.
- Established Business Relationship: An established business relationship refers to an existing equation between an individual or entity and a residential subscriber, based on the subscriber’s transaction with the entity within the 18 months immediately preceding the date of the telephone call. Alternately, on the basis of the subscriber’s inquiry regarding products or services offered by the entity in the three months immediately preceding the date of the call. For the call to be legal, neither party should have terminated the relationship.
- Automatic Telephone Dialing System and Auto-dialer: A technology or equipment that has the ability to either store or generate telephone numbers using an algorithm, along with the ability to dial the numbers.
- Seller: The individual or entity on whose behalf a call or message is transmitted to any person in order to encourage a purchase, rental or investment in a product, property or services.
- Telemarketer: The individual or entity that initiates a telephone call or message on behalf of a seller to encourage the purchase, rental or investment in a product, property or services.
Instances of Violations
Telemarketers have challenged the TCPA since it was introduced in 1991.
There have been several major cases that have gone as high up as the US Supreme Court to be settled. The following are two case studies of some of the high profile cases:
Instance 1: Capital One Financial Corp.
In 2012, three separate cases were registered against collection agencies that were collecting debt on behalf of Capital One, an American bank holding company.
The agencies allegedly used auto-dialers and/or pre-recorded messages to contact consumers without their explicit consent.
Without accepting any guilt, Capital One and the three agencies agreed to pay $75.5 million in a settlement, one of the largest settlement amounts in US history. Capital One agreed to pay $73 million and the three collection agencies combined contributed $2.5 million. The settlement was approved by the court in 2015.
The whopping amount was attributed to the large size of the class. According to the class counsel’s statements in court, between $20 and $40 would be provided to each member of the class, estimated to include approximately 21 million people.
The class is defined to include all individuals in the United States who received a call from Capital One’s agents through an automatic telephone dialing system in an attempt to collect debt between January 2008 and June 2014.
Instancce 2: Dish Network LLC
In 2017, Dish Network LLC (Dish) was found liable to pay $341 in two separate federal cases related to violation of the TCPA.
In one case, ‘Krakauer v Dish Network LLC’, complainants claimed they received calls from Satellite Systems Network (SSN) to promote Dish’s services, despite being on the Do Not Call Registry. Dish argued in court that it should not be held responsible for SSN’s actions.
The court, however, ultimately found Dish liable for approximately 51,000 calls in violation of the TCPA. The court judgement stated that Dish was aware of SSN’s history of TCPA violations, yet continued to allow SSN to market its services. The satellite service provider had enough evidence that SSN was making illegal calls on its behalf, yet “repeatedly looked the other way”.
The jury held Dish liable for $400 per call, approximately $20.5 million.
In the other case, ‘United States of America et al v Dish Network LLC’, the FTC, along with the states of California, Ohio, Illinois and North Carolina alleged violations of TCPA, TSR (Telemarketing Sales Rule) and state law. Dish was accused of calling individuals listed in the Do Not Call Registry.
Dish was held liable to pay up $280 million in statutory damages and penalties. Of this $168 million was paid to the federal government and the remaining was given to the states. Dish was also made to consult a telemarketing-compliance expert who would help design a plan to ensure compliance with the rules. The plan was expected to be shared with the court.
By the time the deal was approved by the court, the TCPA attorney fee in the case was famously cut from 30 percent of the settlement amount to 20 percent, bringing the fee amount to $15 million.
How Can Companies Ensure TCPA Compliance?
All the cases mentioned above are evidence that companies engaging in telemarketing, especially through third-party agents need to have a management program in place to ensure TCPA compliance.
If vendors or third-party agencies like SSN are managed, instances of blatant TCPA violations are likely to reduce. The following are some steps:
- Carry out thorough background checks before engaging third-party vendors for telemarketing.
- Engage vendors in a binding contract to honor the Do Not Call Registry and require them to follow regulations.
- Insist vendors maintain detailed records of interactions with customers and evidence of compliance with TCPA regulations. The company should also have the right to audit these records.
- Address and investigate consumer complaints in an organized way. For example, Dish received complaints from individuals regarding unsolicited calls from SSN but chose to dismiss them saying it takes no responsibility for SSN’s actions.
Telephone Consumer Protection Act Lawyers
There are several attorneys and law firms in the field specializing in cases relating to TCPA violations.
If you are on the Do Not Call Registry, yet you continue to receive unsolicited messages or calls from telemarketers, you are within your rights to file TCPA lawsuits against the company responsible.
If you have been on the receiving end of unsolicited calls, faxes or pre-recorded or auto-dialed telemarketing communications, you may be able to bring a suit against the caller if the caller is found to be in violation of the TCPA.
You can find legal aid in your local area through Find An Attorney, a portal which generates contacts of attorneys based on the field you’re looking for help in and the area. Most law firms will also assist with cases of TCPA violations.
Finally, the above covers some basic themes to help you familiarize yourself with the Act that protects your privacy rights and upholds your consent in the event of unsolicited advances by telemarketing communications.
It happens often that common citizens are not even aware of how to register themselves in the Do Not Call directory or that there is a way to stop these unsolicited communications.
The above is only a short summary of what the TCPA of 1991 and its following amendments protect and how to stand up for your right to be protected from unwarranted phone calls.
With this information in hand, explore further and educate yourself on the rights the US Constitutions has bestowed upon you. Visit the fcc.gov to know more.