The Telephone Consumer Protection Act of 1991 (“TCPA”) was enacted into law in 1991. Most commonly known for its creation of the “Do Not Call Registry,” the TCPA governs and protects consumers in many other ways. Offering more protection, the FCCPA also governs the conduct of first-party creditors (i.e., banks) when they collect their own debts.
More specifically, the TCPA governs the conduct of telemarketers and debt collectors. The TCPA restricts the use of automatic telephone dialing systems (also known as “auto-dialers” or “predictive dialers”), artificial or prerecorded voice messages, SMS text messages, as well as the use of fax machines to send unsolicited advertisements. Sometimes it can be hard to determine if a call made to your cell phone was made using an automatic telephone dialing system. For example, a call initiated from a debt collector or telemarketer using an auto-dialer may in fact have a live person on the other end of the line when you answer the call. In order for a debt collector or telemarketer to maintain an effective and profitable operation, however, they must typically make thousands of telephone calls each day . . . and it is hard to do this by simply picking up a phone every time they want to make a call and dialing ten digits. So, if you or someone you know are getting calls from a debt collector or telemarketer on your cellular telephone, there is a very good chance that the telemarketer or debt collector are violating the TCPA. In accordance with the TCPA, if LeavenLaw is successful in vindicating your rights, you would be entitled to collect damages ranging from $500 to $1,500 for each unlawful call, fax, or text message made or sent to you.
Violations. Examples of common TCPA violations include:
Debt Collection Calls
- Debt collection calls made to your cellular telephone, which were initiated by the use of an auto-dialer or predictive dialer without prior express consent to do so.
- Debt collection calls made to your cellular telephone, which involve the use of an artificial voice and/or a pre-recorded message without prior express consent to do so.
- Telemarketing calls made to your cellular telephone, which were made using an auto-dialer or predictive dialer without prior express written consent to do so.
- Telemarketing calls made to your cellular telephone, which involve the use of an artificial voice and/or a pre-recorded voice without prior express written consent to do so.
- Fax messages sent to your fax machine or number which solicit or promote a business (i.e. junk faxes).
- Text Messages advertising various offers sent via text messages to your cellular telephone (i.e., spam texts).
Damages. The TCPA is a strict liability statute. For any consumer who has been aggrieved by debt collectors or telemarketers in violation of the TCPA, the TCPA also provides for statutory damages, which range from:
$500 - $1,500 per unlawful call
For negligent violations of the TCPA, the consumer is entitled to $500.00 per call. There is not really a defense to a TCPA violation if all of the elements of the cause of action can be established. For intentional violations of the TCPA, the consumer is entitled to up to $1,500.00 per call. The Court has the discretion to increase the statutory damages up to $1,500 per call, text or fax if it can be shown the debt collector or telemarketer made the calls or sent the texts or faxes purposefully and intentionally. The TCPA also provides for injunctive relief, a remedy where the consumer can ask the court to enjoin (i.e., issue an order commanding the debt collector or telemarketer to stop) making the debt collection or telemarketing calls, text or fax.
How You Can Help with Your Case. There are three things that you can lawfully do to help with your TCPA case. They are:
- Keep track of all calls made.
- When you answer a call, ask for the calls to please stop.
- Do not re-provide your cell number.
To help keep track of the calls you receive, you can keep a Communications Log of the calls, get screen shots of calls, and save any and all voicemails left on your cell phone, especially if they are pre-recorded voicemail messages using an automated or robotic voice. Once you have evidence of calls, call LeavenLaw to discuss your TCPA case.