Some Basics About the Telephone Consumer Protection Act
We’ve written in the past about some of the legal developments surrounding the Telephone Consumer Protection Act (TCPA), and how courts have interpreted some of the TCPA’s key provisions. But let’s step back a minute and get to some basics. What kind of behavior does the TCPA actually make illegal? When can a consumer sue for violations of the TCPA?
The TCPA makes it illegal to make certain kinds of calls and messages to residential lines and cell phones, including text messages (it also prohibits sending certain faxes, although fax TCPA cases aren’t as common nowadays). Consumers can sue for and obtain damages against companies that violate the TCPA.
The TCPA does not allow anyone to make calls to cell phones from what is known as an automatic dialer – sometimes called an automated telephone dialing system or ATDS. These are systems that allow callers to randomly dial hundreds if not thousands of calls every hour.
By eliminating the need for a human to dial, calls can be made much faster, which is why companies with high call volumes (like debt collectors) love these devices. Often you can tell when one is being used, because when you answer the phone, there is a short pause, silence, or delay before someone picks up, or perhaps even a recording saying you are being transferred to someone to speak to.
The TCPA also prohibits pre-recorded calls or messages from being left. These are the robotic sounding voices that you often find on your voicemail.
Text messages of any kind are also prohibited unless you have consented to them. Many businesses get into trouble when they decide to engage in mass text messaging marketing campaigns.
As we’ve written about in the past, the big exclusion here is for “consent,” which is usually written into many of the contracts that you sign–for example, when you take out a credit card application.
When it comes to land lines, calls with pre-recorded messages are prohibited (calls can still be made with autodialers, so long as a human picks up or leaves a message).
But land line restrictions have two big exceptions in the TCPA. Calls must be “solicitations,” which means to sell something, which by definition excludes debt collectors.
The second exception is where someone has a pre-existing business relationship–that is, you’ve consented to receive the calls, or done business with the caller in some way in the past in the past 3-18 months (depending on whether you had a purchase or transaction with the company or person calling).
Do Not Call List
If your number is on the do not call list, you cannot be called whether on a cell or land line, for telemarketing purposes, regardless of whether the call is automated or not.
However, callers who violate the do not call restrictions do get some leeway–consumers can only sue under the TCPA if a caller has made two calls in the last year.
Contact Jacobs Legal in Miami today to discuss stopping unwanted calls or text messages and to discuss whether you may be entitled to damages under the TCPA.