What is the Telephone Consumer Protection Act (“TCPA”)?
The Telephone Consumer Protection Act, or TCPA for short, protects individuals from unsolicited telephone calls and texts. It has since been continually interpreted and expanded by the FCC and allows an individual to recover $500 to $1500 per call or text made in violation of the law.
What does “$500 to $1500 per call or text” mean exactly?
The TCPA provides for something called strict liability, statutory damages. This means that even if you can’t prove financial losses or injury, you are still entitled to compensation. After all, it would be very difficult to measure the financial equivalent of your harrassment without some help or guidelines.
The compensation difference is based on whether the calls or texts were made negligently or accidentally ($500) or willfully or knowingly ($1500 per call).
What types of calls and texts are worth money because they are illegal?
The following guidelines generally apply (this is NOT legal advice for your particular situation):
Calls or texts made without your consent (including mistaken and wrong number calls and texts);
Using an automatic telephone dialing system AND/OR a prerecorded/artificial voice.
Landlines for home or business:
Telemarketing calls made without your prior consent, or after consent was removed;
Using a prerecorded or artificial voice.
What qualifies as “consent”?
For telemarketing calls or texts, your consent must be express and in writing (such as by clicking a previously unchecked box when signing up on a website for a product or service. Any permission must include authorization for prerecorded or autodialed telemarketing calls or texts. Consent can also be provided by signing papers where the possibility of such calls and/or texts was clearly disclosed to you).
For all other types of calls or texts, your consent only needs to be “express.” Most courts (including in California) have found that simply giving a company your telephone number is “express consent” to be called at that number (for example on a website).
OK, “Automatic Telephone Dialing Systems” are illegal. How do I know if the caller is using one?
An automatic telephone dialing system is any system that has the ability to dial numbers without a human initiating each single call. In general, a system that can dial from a list of numbers without a person dialing each number is likely an “automatic telephone dialing system.”
Even if the system could not originally auto-dial numbers, if it is capable of being modified to complete such calls, it may qualify as an automatic telephone dialing system.
While there is no guaranteed way of knowing for sure if an auto-dialer is being used without filing a lawsuit and forcing the company to produce documentation on their system, there are some telltale signs, such as:
- Unnatural or awkward delay from the time you answer your phone or say your greeting to the time you’re connected to a live person;
- Hearing a “click” after answering the call before a live representative comes on the line.
- Dead air or “hang up” calls from the same caller, where no human ever responds
- Auto-dialed text messages likely have identical or near-identical content or structure from message to message.
Do I have to tell the company or caller to stop calling or texting me in order to be entitled to money?
Generally speaking, telling them to stop is not strictly required, but you should if possible. Additionally, you should plan on documenting when exactly you told them.
Some helpful details would include dates, times and names of the representatives who received your request. Be as firm and clear as possible. “Stop calling me” is better than “Can you please stop calling me?”
For wrong number calls or texts, you are under no legal obligation to inform the caller that it has the wrong number and that they should stop contacting you. That said, it may be in your best interests to inform them of the mistake to both cease the contact and argue for $1,500 per call or text if they do not stop.
Debt collection calls or texts which are meant to collect a debt from you are likely legal, to the extent the agreement creating the debt likely provided consent to be contacted.
While this isn’t always true, it is good practice to ask the debt collector to stop calling before contacting an attorney about a TCPA claim. Keep in mind, however, that if you legitimately owe the debt, asking the collector to stop calling does not mean the debt goes away.
For other unsolicited calls or texts, you remain under no obligation to ask them to stop calling. Under the small chance you may have consented to be contacted and later forgot about that consent, it makes life easier to be able to file a lawsuit that says “I never consented. But even if I did, on August 2, 2017, I told representative John Doe to stop calling me.” This also makes it easier to argue for $1500 per call rather than $500, as it would prove intent to ignore your demand regardless of prior, now revoked consent.
What about scammer calls from “Microsoft Support”, “Google Business Listings” and others?
Well, there is one simple problem with holding these scammers accountable for their flagrant TCPA violations. We can’t discover who they are and thus who to sue. Most, if not all of these scammers are either overseas, or make real effort to hide their true identity. That’s why they often won’t reveal to you their real company name, address, call back phone number, or a website. Sadly, there’s not a whole lot that can be done by an attorney in such a situation, because there’s no way to recover if you can’t find who you have to sue. Filing a complaint with the FCC and FTC may be a better idea.
All that said, attorney’s can subpoena certain information about a business if you can uncover some details about their:
- billing name on a credit card statement (for example if you agree to a small purchase to find out who they are)
- website address where they request you to input information
- 800 number
- commercial address (not PO Box)
Ideally however, the more information you can obtain from the callers, the better, but at a minimum, it is ideal to have at least two of the following:
- A real phone number that you can call back and speak with someone;
- A real domain name you can visit, with real effort placed on collecting information a describing a detailed product or service;
- A verifiable business name.
What about the “Do Not Call” list?
The famous “Do Not Call” list was actually created by the TCPA for the benefit of individuals like yourself. As such, if a company makes two or more telemarketing calls/texts in a 12-month period to a number on the “Do Not Call” list, it faces an additional $500 to $1500 per call on top of the penalties for making calls/texts using an automatic telephone dialing system or prerecorded voice (this means that they only get one free pass to harrass or accidentally call).
It is important to note however that the “Do Not Call” list only protects against telemarketing calls or texts, while the restrictions against calls or texts using an autodialer or a prerecorded voice to a personal or business cell phone apply to almost any type of call.
A few examples:
- You receive 10 calls on your cell phone (which is currently on the “do not call list”) from a company using an auto-dialer. You never gave this company consent to contact you for any reason. This company is trying to convince you to buy its new software. This likely violates both the rule against calls made using an automatic telephone dialing system (statutory damages of $500-$1500 per call) and the rule against making calls to any number on the “Do Not Call” list (another $500-$1500 per call). You may potentially be entitled to $1000 or $3000 per call or text as a result.
- Alternatively, let’s say you are on the registry, but still receive 10 autodialed calls from a debt collector who has the wrong number. These calls likely do not violate the “Do Not Call” rule, but they likely violate the rule against using an automatic telephone dialing system.
What does hiring an attorney cost me?
Nothing unless you win. We get paid on a “contingency” basis, which means that we take a percentage of what you recover, as well as the hard costs of filing the suit, etc. However if you recover nothing, you do not owe us a single penny. Put simply, you owe us nothing out of pocket at any point to sue for TCPA violations.
How long does it take to make them pay?
There is no set in stone time frame. Some cases settle in a month, and other cases drag on for over a year. Some of the primary factors in resolving a suit quickly include the company being sued, and the attorney’s they retain to defend themselves, in addition to the relative strength of your case (evidence etc.). It is also necessary to point out that Federal Courts are famously backlogged — and there simply aren’t enough Judges to get through all of the pending cases in what a normal person would call a “fast” timeframe.
In spite of these curveballs, we are committed to maximizing our Client’s ultimate cash recoveries and being as efficient as possible while doing so.
Do I have to receive a minimum number of calls or texts before you’ll consider my case?
For economic reasons, we typically do not take cases on an individual basis (as opposed to where a class action may be appropriate) when there are less than 20 calls or texts from the same identifiable company. For example, if you only receive 5 calls or texts from a company, you may be able to recover at most $2500-$7500. The time and court costs for an attorney to prosecute such a case typically is not worth it.
Class actions are a better route to go if you may possible be one victim among many. If you’ve received 5 unsolicited telemarketing calls or texts from a legitimate company looking to sell you anything, it is very likely that same company is making these calls or texts to thousands or millions of other people just like yourself. A class action would allow you to be the voice of all of those people who were harrassed and annoyed by that same company while holding the company accountable for all of those calls and texts.
Is this whole, “make from from annoying phone calls and texts” thing actually real?
Absolutely! Take a quick look at some of these news articles, all of which deal with the same law and discuss how people just like yourself fought back and got paid:
It is important to note that for every news article (and there a many of them) showcasing everyday Americans winning these cases and stopping the harrassment, there are many more that have quietly settled, and we will never hear about. TCPA lawsuits have resulted in over a billion dollars in cash to phone owners like yourself, and until these unsolicited and prerecorded phone calls cease, that number will continue to grow.
Please remember that prior results from these cases do not guarantee similar outcomes in your potential case.