Are you wondering how to protect yourself from predator telemarketers and debt collectors?
Every week clients come to our office seeking advice about their rights and what they can do to stop people harassing them with phone calls and texts.
That’s why we put together this interactive video guide. That way, you can gather everything you need to know about the Telephone Consumers Protection Act in an easy to follow format.
How it works:
Each video in this guide provides a specific overview of a certain aspect of the TCPA, from what it is, to what steps to take when faced with a TCPA violation, and the damages that you could receive when faced with a violation.
Also, for those who like to read rather than watch, we’ve added topical summaries along with each video.
So, let’s dive in.
What is the TCPA?
What is the Telephone Consumer Protection Act?
The Telephone Consumer Protection Act or TCPA is a federal statute. It interacts with the FCC (Federal Communications Commission) and the FTC (Federal Trade Commission).
Plus, a bit, with the CFP, (Consumer Financial Production Bureau).
The Telephone Consumers Protection Act is a strong statute, and its reach is growing on an (almost) daily basis.
What the TCPA covers:
These days, the TCPA relates mostly to telephone calls to cellular devices, and in certain circumstances, residential lines, from what is called an ATDS.
Btw, an ATDS is an “Automatic Telephone Dialing System”, but we will talk more about that later.
The TCPA also deals with pre-recorded calls, or “robocalls.”
This is where a person uploads several hundred numbers to a machine. Then, either by hardware or software, uses the machine to call numerous telephone numbers at once.
(Often thousands per day.)
The issue with this is that it is an annoyance to consumers.
You don’t want 100 calls a day from a robotic voice selling you insurance, right?
That’s why…
Any organization or company using this type of software or hardware needs to have specific policies and procedures in place to make sure that they don’t violate the TCPA.
The TCPA Requires Consent
The TCPA essentially says you must get consent before calling someone.
Prior express written consent is required to call somebody using a pre-recorded voice in ATDS or robocall.
This means:
They need to get a person’s explicit consent in writing to use an auto dialer to contact them.
The Two Most Common uses for Use Auto Dialers
There are two main groups of people who use auto dialers or ATDS systems.
They are:
- Telemarketers
- Debt collectors
The Telephone Protection Consumers Act standards set for each are based on recent FCC rulings and CFP B policies. However, each group is treated somewhat differently.
How are Debt Collectors and Telemarketers different according to the FCC and CFB?
Telemarketers are typically held to slightly higher standards because they’re not seeking to collect something legitimately owed to them. They are attempting to make sales.
Which is why:
Debt collectors face slightly lower standards according to the FCC and CFB. That said, they must still get some form of consent before contacting someone using an ATDS.
An example of Consent differences
One common TCPA dispute revolves around whether merely providing your cell phone number to a medical company or a debt collector constitutes consent to be contacted via an auto dialer.
So far…
Rulings have been consistent that providing your number to an organization does not directly give an individual or organization consent to contact you for telemarketing purposes.
However:
Case law and opinions are a little murky when it comes to whether providing your number to an organization gives them consent to call you with an auto dialer to collect debts.
So, that’s prior consent.
Next up:
When consent is revoked
This is where you could say I initially gave you consent to call me with an auto dialer, but now I’m tired of receiving those calls.
One of the issues with revoked consent is how to revoke consent.
The 11th Circuit is quite clear in stating that you can revoke consent by just answering a call from a telemarketer or debt collector and saying something along the lines of:
“I would like you to stop calling my cell phone.”
It does not have to be in writing.
Consumers have the power to say “stop calling my cell phone”, or something to that manner, and the caller must legally honor that wish.
But…
What happens if an individual or organization violates the TCPA?
If the collector or telemarketer continues to call after consent is revoked, or did not obtain the required prior express permission in the first place:
The TCPA allows for the private right of action that accounts for statutory damages.
What are the damages?
A victim of a TCPA violation can claim statutory damages.
Alternatively, in cases which account for what are unquantifiable damages, a damage amount is set by the federal government. This means that if somebody calls your cell phone, you might not be able to say that you lost or suffered a particular amount of monetary damages.
TCPA statutory damages amount to $500 (five hundred dollars) per TCPA violation. There is also a troubling effect for what’s called willful and wanting offenses.
This means:
If somebody calls you say 500 times a day, that’s a willful violation of the TCPA. This leads to a troubling effect for damages, increasing the statutory damages up to $1,500 (fifteen hundred dollars) per dialed call.
How to Know if your Rights have been Violated?
It can be difficult to tell if a debt collector or a telemarketer is calling from an ATDS.
Why?
Because sometimes it’s a human voice on the other end of the line.
From the Callers Perspective
Our law firm has represented both plaintiffs and defendants in TCPA cases. Moreover, when first talking to clients, some company heads will come to me and say something like:
“Well, we don’t use a robodialers, so we’re in the clear.”
Or
“We don’t have a robovoice. So, we’re fine.”
Unfortunately, that’s not true.
Here’s why:
It’s not the type of voice that defines the TCPA violation. It’s the type of machine or software you use to make the call.
Think about it:
If you are using a machine or computer screen that can dial 2,000 calls a day, that’s a violative machine if you don’t have the adequate prior express consent or had a revocation of such consent.
From the consumer’s side
Here’s a simple method you, the consumer, can identify an ATDS.
Has the same company been calling you twice a day, every day, for a month?
Then it’s fair to assume that they’re using some kind of machine or software that can dial thousands of calls per day.
I don’t think – and this is me speculating – that a person with a list and a rotary phone is going to go through their list once, then come back to the top of the list by the end of the day and then start again.
(Resulting in you getting a call from the same person twice or three times in a day.)
However, if you got a call once or twice a month from a live person, you might not have an ATDS situation.
Here’s another way to tell if you’re being robo-dialed:
Say you pick up the phone or listen to a voicemail and hear something like “Hello, my name is…” and it’s a robot or pre-recorded voice, then it’s clearly a robo-call or a pre-recorded voice.
I know that it sounds silly.
However, that’s a truly straightforward method of identifying a robodialer.
What to do if an ATDS calls you?
If you have already revoked consent to the caller or if you know for a fact that you have no contractual privity with a corporation – privity meaning that you’re in a contractual agreement – and they call you:
Then, your United States consumer rights have been violated, and…
…you are entitled to damages – from this very first call.
What are those damages? Like we mentioned before, they are $500 (Five hundred dollars) or up to $1500 (fifteen hundred dollars if it’s willful wanting) per call.
What do you do when your rights have been violated?
Come to an attorney.
The attorney will likely ask you to provide itemized information to prove when the calls were made, who made the calls, etc.
Next, the attorney will go through some more information about TCPA lawsuits with you, such as their duration, and explain that TCPA cases are filed in the federal courts.
Then, they will proceed with your case, like any other ordinary lawsuit.
How long does a TCPA case take?
Almost every one of my clients – plaintiffs or defense – that I represent asks how long TCPA cases take.
Unfortunately…
The judicial system is an imperfect system. Sometimes it gets backed up.
The good thing about TCPA cases is that they’re generally handled in a federal court, where you have the best of the best judges.
You can’t mess around there.
In the Federal Courts, we have to dot our i’s and cross our t’s and to make sure the case is progressing at a good pace.
The judges also do an outstanding job of keeping these cases moving along at an adequate pace.
All that being said:
Cases can take a year. They can even take two years, depending on the complexity and the size of the matter. For example, cases on an individual basis usually require less than, say class action classes basis. The number of documents, defendants, and plaintiffs involved all influence the length of a case.
Other factors include the judge, the time of year, and how many cases that judge may have on his or her docket.
It’s common knowledge that most cases today, 90%+, don’t go to trial, but instead are settled before the trial stage.
These are called “right for summary judgments”.
This usually means:
The issues involved are factual issues. Plus, there aren’t many factual issues involved in the case.
(The number of specific legal issues are something that can be determined by a judge before the case is reached.)
Because most cases are settled before getting to a jury, I would say actual case turn around times range anywhere from four months to two years.
What is Prior Express Written Consent?
The term “prior express written consent” is the subject of many litigation cases surrounding the TCPA.
A more in-depth look at Prior Express Written Consent
This is one of those areas that I mentioned earlier which may, or may not, differ based upon who’s calling you.
If it Is a telemarketer calling you, prior express written consent is precisely what it sounds like:
Express written consent to be called using an ATDS or pre-recorded voice collected from the person being called, before the call is made.
The consent should also explain that consenting to be called by an ATDS is, at no point in time, a prerequisite to doing business or getting a product.
(In other words, you don’t have to consent to autodial calls to buy a widget.)
Although highly specific language must be used, express written consent can be provided electronically.
So…
You could click a box on a website saying the proper express consent phrase, and by doing so, you’d be giving your legal prior expressed consent.
It is a little different for Debt Collectors
Although they must still gain a consumer’s consent,a the form of said consent is a little less specific for debt collectors. Alternatively, at least courts have held in previous cases that it may be less specific.
What does that mean?
For debt collectors, it may be considered “prior express consent” to be called (even using an ATDS) if you merely gave them consent to call you. Whereas for a telemarketer, the consent must specify express permission to call you using an ATDS or using a pre-recorded voice.
What to do if you have a TCPA case?
Do you suspect that you have a TCPA case? Whether it’s on the plaintiff side or the defense side, you should call your attorney immediately.
In case you’re the Plaintiff:
When on the plaintiff’s side you could be entitled to massive damages, or at least compensation in damages.
If the case involves a debt collector, they will also often reduce or eliminate the debt.
In case you’re the defendant:
Is your company being sued through the TCPA? You should call your attorney immediately to defend you in the lawsuit. But, you must also make sure you are compliant and regulations are in place to ensure you eliminate the possibility of violating the TCPA in the future.
How Debt Collection Agencies Find You
So, what happens if you never gave your phone number to a debt collector?
How do debt collectors find you?
Debt collection companies have a number of resources available to find information on you.
The most common way is getting the information directly from their client who’s the company that they’re collecting for.
For example:
You have an old, outstanding debt of $1,000 to ABC bank. They have written off the debt (thinking that you’re not going to pay) and sold it at a discount to ZYW Debt collectors.
Along with the debt amount and your name, ABC bank provides ZYW with your address and phone number so they can get in touch with you. That’s the most common way for debt collectors to get your information.
Using a “skip trace.”
A skip trace is essentially a fancy term for a private investigation or background check. Skip traces are used to see whether you have taken out any new credit cards, new cell phones, etc.
Using the information they collect, they will find you.
Something to be aware of:
If they call you on a phone number obtained from a skip trace, (which you didn’t give them consent to call that number), you likely have a TCPA claim.
Because:
You didn’t give them prior express written consent to contact you via that number.
This means you could receive up to $500 (five hundred) per call or $1,500 if they do it willfully or wantingly.
The other way debt collectors find you
(and this is where it gets a little creepy)
Debt collection agencies will use your social media profiles on Facebook, LinkedIn, Twitter or other social media platforms to find information about you.
I’m not advocating that you hide information from social media, but you should be cognizant of the information that you put out into the public and who may be watching.
Unsolicited Illegal Text Messages
I receive many questions asking me what to do about those pesky spam or junk text messages people receive on their cell phone.
What if I told you that they’re illegal?
Moreover, that you may be entitled to up to $500 (five hundred dollars) per text message?
I’m going to tell you what to look for when you receive spam or junk text messages, and how to go about receiving compensation entitled to you.
What are Spam or Junk Text Messages
Spam or junk text messages are often characterized by those six digits shortcodes that are in the place of a regular telephone number.
For example:
You receive a text message from a number listed as 789-99, asking you to buy a product or go to a website.
These kinds of text messages are sent to you, and hundreds or even thousands of other individuals, all at the same time, using an automatic telephone dialing (or in this case texting) system.
As mentioned in a previous video, these machines are referred to as an ATDS. They can store numbers and dial or text individuals in sequential order, one after another, after another, instantaneously.
The TCPA & ATDS’s
The Telephone Consumer Protection Act regulates not only the sending of automated text messages, but also the use of these ATDS machines to send text messages.
That’s because it’s easy to harass a consumer when you can send out 10,000 text messages at once.
The Telephone Consumer Protection Act requires any business who use these machines to obtain a consumer’s prior express written consent before contacting them, which means much more than just gathering consumers’ phone numbers.
So, don’t worry.
Just because you gave a business your phone number, it does not mean they automatically have permission to harass you through text messages.
They would need your prior express written consent to text you using automatic telephone dialing equipment.
Even then…
Businesses must give you a way to opt-out, or stop receiving these types of text messages.
That’s why:
If you have received automated text messages in the past, you probably remember seeing a little thing at the bottom that says something like “press 1” or text “stop” to opt out.
Btw, if you receive a text message that gives you these options and you don’t want to receive them anymore, you should use the opportunity to have them stop contacting you.
That said, it doesn’t mean they were allowed to send you these text messages, to begin with.
If you received these text messages but did not give express consent, or if you’re receiving them after you texted stop (or pressed 1 to stop) then you, as a consumer, may be entitled to up to $500 (five hundred dollars) per text message you receive.
This can often add up to a lot of money. Especially in cases involving continued offenses.
Also:
If the business or individual who’s sending the text does it in a way that’s willful or wanting or is attempting to harass you, you may be entitled to up to $1,500 (fifteen hundred dollars) for each text message.
(Just like a TCPA violation made by phone call)
Class Action Telephone Consumer Protection Act cases
Remember what we talked about regarding the ATDS machines, which were capable of sending the same text messages to thousands of individuals?
Well, chances are:
If you’ve received one of those text messages with a shortcode instead of a regular number without any prior consent to send you these types of messages…
…in all likelihood you are one of many who received it.
So, if the sender violates the TCPA, it may be appropriate for a class action.
Ok. That’s it for today.
Thank you for watching and reading!
If you liked our videos and felt they were useful to you, please subscribe for future updates, and click the notification bell for useful legal content updates.
Also!
If you have any suggestions for future videos, leave them in the comments section below, and we will see if we can make a video about the topic.
