The Telephone Consumer Protection Act (“TCPA”) protects wireless telephone users against calls to their cell phones using an Automated Telephone Dialing System (“ATDS” or “robodialer”) and/or an artificial or prerecorded voice.
HOW DOES THE TCPA PROTECT MY CELL PHONE?
The Telephone Consumer Protection Act of 1991 (the “TCPA”) provides that it is against the law :
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice –
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the federal government.”
47 U.S.C. Section 227(b) (A)(iii) (2017). Similar protections apply to all telephones (including landlines) for emergency telephone lines (e.g., “911 numbers”), and “the telephone lines of any guest or patient room of a hospital, health care facility, elderly home, or similar establishment.” 47 U.S.C. Section 227(b)(A)(i) – (ii) (2017).
HOW MUCH CAN A CELL PHONE USER WIN IN A TCPA CASE?
The statutory damages under the TCPA are a minimum of : $500 per call or the amount of any actual damages, whichever is greater.
The TCPA also provides that, if the caller willfully or knowingly violated the TCPA, the Court has the discretion to award an additional amout of up to $ 1,000 per call. In other words, the $ 500 per call is mandatory, any additional amounts (up to $ 1,000 per call) are up to the Court’s sound discretion. Cell phone users who prevail in their lawsuit can win up to $ 1,500 per call.
WHAT IS A “CALL” TO MY CELL PHONE?
Calls which violate the TCPA commonly include robodialed calls whether the cell phone user answers the call or not. A “call” also includes calls which are abandoned after a cell phone user does not answer the call after a set number of rings. “Calls” also include voice messages and SMS Text Messages. Wireless providers do retain information concerning unanswered calls, voice messages and texts only for a very brief time so documenting your TCPA case while your rights are being violated is highly advisable.
WHAT DO DOES “ROBODIAL” MEAN?
Robodial is an ambiguous term. I use the term “robodial” to include calls placed using any technology which violates the TCPA.
Generally, the TCPA prohibits people from making calls to a cell phone using : (1) a prerecorded or artificial voice; and/or (2) an Automated Telephone Dialing System (“ATDS”) without the cell phone owners prior express consent.
If you are receiving calls using a prerecorded or “artificial” voice, save the voice messages and consider taping the prerecorded incoming greetings.. (Please do NOT record any live people though!) It is much less difficult to prove that the caller violated the TCPA when you can prove you were receiving prerecorded messages. Proving that the equipment the caller used to make the call was an ATDS is often tricky and callers often play games (i.e., lie) to evade or delay justice.
WHAT ARE THE SIGNS THAT THE CALLER IS USING A ROBODIALER TO CALL MY CELL PHONE?
The question whether the caller used an ATDS to make the call is usually a question of fact to be proven up during the TCPA lawsuit. Signs that a caller used an ATDS include but are not necessarily limited to :
(1) a high volume of calls;
(2) a noticeable pause after you answer the phone before anyone comes on the other line;
(3) dead air;
(4) dropped calls;
(5) caller ID displays as a telephone number which automatically disconnects you if you call it back; and/or
(6) calls originating from a variety of area codes or your local area where the company does not have facilities.
None of these “red flags” which indicate that the caller used an ATDS prove that the caller’s system actually was an ATDS.
An Automated Telephone Dialing System is “equipment which has the capacity —
(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers.
47 U.S. Code Section 227(a)(1) (2017). The term “capacity” means that the equipment does not need to be used in that manner to place the call but that the equipment is capable of doing so.
The FCC has ruled that “predictive dialers” are ATDS. Predictive Dialers are :
“equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls.”
2003 TCPA Order, Para 131 (July 3, 2003). The FCC made this ruling because :
“The hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers. *** [I]n most cases, telemarketers program the number to be called into the equipment, and the dialer calls them at a rate to ensure that when a consumer answers the phone, a sales person is available to take the call. The principal feature of predictive dialing software is a timing function, not number storage or generation.”
2003 TCPA Order, Para 131 (July 3, 2003). One of the important points in the FCC’s Order is that people who experience a couple of seconds of delay before a live person speaks up are probably receiving robocalls which used a predictive dialer.
WHAT IS “HUMAN CLICK INTERFACE”?
The early FCC TCPA Orders focused on the volume of calls which the equipment could rapidly dial. As clever telemarketers and debt collectors attempted to claw away at the consumer’s protections, the phrase “without human intervention” snuck its way into the FCC orders and judicial opinions. Of course, back then, the equipment was designed to place the calls without any human intervening so the language was probably dicta anyway.
Eventually a clever equipment designer developed a system that was hard wired so that if a human did not click on a telegraph key, the call would not be placed. In almost any other area of the law, such a device would be viewed as an artifice scheme or device to defeat a remedial statute but the courts have not taken this view.
One of the trade names for these predictive dialing systems designed to “comply” (i.e., circumvent) the TCPA is Human Click Interface or “HCI” but the term HCI is also descriptive of similar systems sold by other dialing system providers.
The HCI systems are basically predictive dialing systems with a human in the middle clicking a mouse or telegraph key as rapidly as possible so that the pulses from the predictive dialer continue along the path to the phone line. The human “clicker” could be a hamster on a wheel or a trained monkey. The equipment also has the capacity to dial at the preset rate by by-passing the clicking device. Hundreds of millions, if not a billion, collection calls are now unleashed on cell phone users every year as a result of these adverse decisions.
The courts are routinely disposing of TCPA cases before trial by granting defendant’s summary judgment motions where the defendants provide evidence that they used HCI (or an HCI-like) system. Unfortunately, the plaintiff’s bar was caught by surprise by this “technology” and failed to develop their cases properly.
Many other creditor in house collection departments and debt collectors now instruct their employees to dial numbers “manually” (often by clicking a mouse on a screen of numbers) in order to comply with the TCPA.
Unless the defendant is an outlier and admits to using an ATDS (some do), discovery must be conducted, documents must be requested and, usually, compelled, and depositions of defendant’s personnel taken. Even if a company owns an HCI system, the question remains which of their systems did they use to place each call to the consumer.
WHAT TYPES OF CALLS ARE EXEMPT FROM PROHIBITIONS AGAINST ROBODIALING MY CELL PHONE?
Unlike the National Do Not Call List, the TCPA’s prohibitions against unwelcome robocalls to cell phones covers almost every type of call including calls from tax exempt nonprofits and political or religious organizations. Three types of calls are exempt.
The following types of calls are exempt from the TCPA’s prohibition against unwelcome robocalls to cell phones :
(1 ) Calls attempting to collect a debt owed to the United States government;
(2) Prerecorded collect call introductions; and
(3) Calls from your wireless carrier when they do not advertise and do not charge you for the call.
The phones receive protections that are not afforded by the National Do Not Call List and cell phone users do not need to be on the DNC List.
DEBT COLLECTORS AND CREDITORS ARE AMONG THE WORST VIOLATORS OF THE TCPA
Reliable estimates based upon network traffic, indicate that 7.8% of the robocalls are from debt collectors. In March, 2017, there were approximately 1.7 billion robocalls placed in the United States. Seven point eight per cent (7.8%) would mean that there were approximately 132,000,000 collection calls in the United States during March, 2017.
Unless the debt collector is calling while attempting to collect a debt owed to the United States government, the TCPA prohibits them from using a robodialer to dial your cell phone without your consent.
If you never consented to receiving robocalls from the caller, the caller may be violating the TCPA each time they call your cell phone. A common example of when a cell phone user receives robocalls they never consented to occurs when a debt collector robodials a cell phone user while attempting to collect someone else’s debt.
If you are receiving many calls about a person who you do not even know, the calls are probably from a debt collector or a creditor’s collection department.
If you are receiving frequent calls about a friend or relative, the calls are probably from a debt collector or a creditor’s collection department.
If you are receiving calls about a debt that you (and/or your spouse) allegedly owe, you should read this article.
If you are receiving calls about a debt which you discharged in bankruptcy or which you believe may be so old that the statute of limitations expired, these articles will be helpful.
If you are receiving debt collection calls about an account that was yours (or possibly your spouse’s) or any other company that you did business with, you may have consented to receiving robocalls to your cell phone.
WHAT IS “PRIOR EXPRESS CONSENT”?
Often, people do not know whether they have consented to receiving robocalls on their cell phone. The most common form of consent is by providing the cell phone number in a loan application, credit agreement, or on-line contact form.
When people provide their cell phone number to a company (such as a bank), they have provided their consent to receiving calls — even robocalls — at that cell phone number. Fortunately, wireless phone users can revoke their consent in any situation in most jurisdictions.
CAN I REVOKE MY CONSENT TO BEING ROBODIALED?
In most states, you can revoke your consent to being robodialed on your cell phone.
In Gager v. Dell Financial Services, LLC, the United States District Court for the Middle District of Pennsylvania ruled that a consumer borrower could not revoke his consent to being robodialed. Gager v. Dell Financial Services, LLC, ( M.D. PA. May 29, 2012). On appeal, the United States Court of Appeals for the Third Circuit (“Third Circuit”) ruled that consumers can revoke their prior express consent and may do so verbally. Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3rd Cir. Aug. 22, 2013).
In Osorio v. State Farm Bank, the United States Circuit Court for the Eleventh Circuit (“Eleventh Circuit”) held that Mr. Osorio’s deposition testimony that he told State Farm to “Stop Calling” was sufficient to survive State Farm’s motion for summary judgment and proceed to trial. Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1255 – 56 (11th Cir. March 28, 2014).
Furthermore, the United States Circuit Court of Appeals for the Ninth Circuit has ruled that consumers can revoke their consent to be robodialed on their cell phones. Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. Jan. 30, 2017).
Two other federal circuit courts have issued non-binding opinions which indicate a willingness to allow cell phone users to revoke consent but neither of these opinions are binding on the district courts in the their circuit or on the appellate court itself in any future cases.
In Momient v. Northwest Collectors, Inc., the United States Circuit Court of Appeals for the Seventh Circuit (the “Seventh Circuit”) reversed an order granting summary judgment in favor of the defendant debt collector because, among other things, plaintiff Momient testified that he had instructed defendant to “stop calling” during a telephone conversation which plaintiff swore occurred several months before the calls stopped. Momient v. Northwest Collectors, Inc., (7th Cir. Nov. 10, 2016).
In another non-precedential opinion, the United States Circuit Court for the Eight Circuit reversed a district court’s order which had disposed of the case in a summary judgment in favor of defendant on grounds other than whether a cell phone user can revoke consent but ordered the district court to determine whether the plaintiff cell phone user had revoked his consent. Brenner v. Am. Educ. Srvcs., (8th Cir. Sept. 26 ,2014).
The Third Circuit’s decision in Gager and the Eleventh Circuit’s decision in Osorio mean that cell phone users in Alabama, Delaware, Florida, Georgia, New Jersey, and Pennsylvania can verbally revoke their consent to being robdialed on their cell phone.
In a recent decision by the United States Court of Appeals for the Second Circuit (the “Second Circuit”), the court held that a borrower who provided his cell phone number in a credit agreement which stated that the lender could robodial the borrower could robodial him could not revoke his consent. Reyes v. Lincoln Automotive Financial Services (2nd Cir. June 22, 2017). The Reyes decision is controlling authority in the federal district courts for the districts in Connecticut, New York, and Vermont.
Unless Reyes is overturned at some point, cell phone users who reside in the three states that comprise the Second Circuit face a choice. If they wish to sue in their home state, they will not be able to revoke consent where the calls arise from credit transactions where the credit agreement provides that the lender can robocall the borrower. But, if the number of calls justifies filing suit in a distant forum, the cell phone user should consider retaining counsel in the state where the calls originated from or the caller maintains its corporate office.
Because the Reyes opinion is based upon the common law rather than the TCPA’s statutory language, creditors and debt collectors will be mounting challenges to distinguish Gager and Osorio. Please follow the TCPA Blog on this site for important case updates as the law develops.
CAN I REVOKE MY CONSENT VERBALLY ?
In most federal courts, cell phone users can revoke their consent verbally. In a
few isolated areas, the federal judges have required cell phone users who are being called about an alleged debt to revoke their consent in writing. Many of these consumer unfriendly decisions were issued in the U.S. District Court for the Western District of New York. Starkey v. Firstsource Advantage, LLC (W.D. NY March 11, 2010). Several other cases in the Western District of New York followed Starkey but did not add to the analysis. See, e.g., Moltz v. Firstsource Advantage, LLC (W.D. N.Y. Aug. 11, 2011).
The Western District of New York is bound by the Reyes opinion which makes revoking consent (even when revocation is written) ineffective if the cell phone user entered into a loan or credit agreement which contain provisions allowing the lender to robodial the borrower’s cell phone.
In cases filed in the Western District of New York, Starkey and its progeny are probably still persuasive authority where there was not a credit agreement or the applicable credit agreement does not expressly provide that the creditor can robodial the borrower but where the borrower consented simply by providing his or her cell phone number to the lender.
The logic of the Starkey decision was based upon the existence of a debt so the written revocation requirement should not be expanded beyond situations where the calls arise from a credit transaction. In other words, Starkey’s written revocation requirement is largely superceeded even in the Western District of New York because the Second Circuit issued an even worse opinion holding that borrowers can not revoke their consent in many credit transactions.
The Starkey court “reasoned” that the TCPA does not say whether or how consent can be revoked but the Fair Debt Collection Practices Act requires that a consumer put their request that a debt collector “cease communication” in writing. 15 U.S.C. Section 1692c(c) (2017). These courts grafted the FDCPA’s “in writing” requirement onto the TCPA which does not contain any such restriction on a consumer.
This “cross-over” contagion spread the Western District of New York to other areas of the country before the Gager and Osorio opinions by the Third Circuit and Eleventh Circuit effectively squelched this misguided interpretation of the TCPA. This is a rapidly shifting area of the law and consumers should consult with an experienced TCPA attorney who is licensed to practice in their state for their professional judgment and advice.
It’s worth noting that the FCC has ruled that phone owners can use any reasonable means to revoke consent to receiving telemarketing calls so this more consumer protective interpretation is consistent with the FCC’s interpretation of the TCPA.
WHAT SHOULD I SAY TO REVOKE CONSENT?
If you receive a robocall on your cell phone and tell the caller :
“You’re calling my cell phone. Stop Calling!“
the caller should stop robodialing you. You should be able to enjoy peace and quiet without the robocalls.
HOW DO I MAKE THE CALLER STOP CALLING ME?
If the caller continues to robodial your cell phone after you told them to “You’re calling my cell phone. Stop calling.” and the call is not exempt from the TCPA, there’s a silver lining — the TCPA often entitles cell phone users to receive $ 500 and up to $ 1,500 per call.
Once you sue the caller, the odds are very high that the caller will finally find a way to program the robodialer to remove your cell phone (and landline) number(s) from its list. But, I’ve seen the errors continue after the filing of a lawsuit and the court did not take kindly to the defendant’s willful disregard of my client’s rights.
The TCPA also allows cell phone users to obtain an injunction against the caller to prohibit them from continuing to robodial you. 47 U.S.C. Section 227 (b)(3) (2017).
Debt collectors and creditor’s collection departments usually quit calling the consumer very soon after a consumer files a TCPA or FDCPA case. This happens because there are at least two information brokers who sweep the federal and probably many state dockets to identify people who sue defendants for violating the TCPA, FDCPA, Truth In Lending Act, state collections practices acts, and probably additional consumer protection statutes. These information brokers update their lists twice a month and sell their service to debt collectors and in house collection departments who would rather avoid calling these so-called “litigious consumers” than comply with the consumer protection laws.
WHAT IS THE DIFFERENCE BETWEEN A TCPA AND AN FDCPA VIOLATION?
Although the remedies in the TCPA and the Fair Debt Collection Practices Act (“FDCPA”) are not exclusive (a consumer can recover under both the TCPA and the FDCPA in the same case if the robodialer is a debt collector), the difference between the remedies can be a game changer. Both statutes provide an amount of statutory damages to be awarded “per violation” but the Courts’ interpretation of what constitutes a “violation” are polar opposite conclusions depending upon which statute is alleged.
The courts have long interpreted the statutory damage provisions of the Fair Debt Collection Practices Act (“FDCPA”) and the Florida Consumer Collection Practices Act (“FCCPA”) which allow courts to award up to $ 1,000 per violation, as meaning per case. In other words, a violation of the FDCPA or FCCPA is the plaintiff’s entire case. In TCPA cases, however, the law is well established that “per violation” means per call even when a call violated only one section of the TCPA.
If you are receiving calls on your cell phone which use artificial or pre-recorded voices in their introductions or messages, please contact Mr. Petersen so he can advise you how to preserve these messages and take other steps to make sure your rights under the TCPA are in effect. This up front preparation will help maximize your chances of recovering money and the amount of your recovery.
IF YOU ARE RECEIVING ROBOCALLS ON YOUR CELL PHONE, PLEASE DOCUMENT YOUR CASE WHILE YOU STILL CAN
It’s very important to follow these steps correctly so feel free to call Mr. Petersen for a free consultation.
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