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Stopping Annoying Texts and Calls is Getting More Difficult

CellPhone

The Telephone Consumer Protection Act (TCPA) protects consumers from receiving unwanted and unauthorized texts, faxes, and phone calls. It allows consumers to sue and to obtain damages if callers violate the law. Because the penalties for violators can be expensive, big business and the debt collection industry is always trying to find ways to chip away at consumers’ rights under the statute.

Withdrawing Consent

One defense to the TCPA is consent—as you can guess, if you give permission to someone to send you a text message or leave a pre-recorded voice message on your phone, you can’t later sue them for doing it.

So who would voluntarily give such consent? A lot of people, and probably you, because consumers are often duped into contractually agreeing to receive these kinds of communications.

The language is buried in tiny language hidden in contracts that you sign all the time. From hospital admission paperwork to credit card application papers to retail promotions, consumers unknowingly give the OK to be harassed by annoying calls and texts.

One way consumers have fought back is by simply withdrawing their consent. And courts have been pretty lenient in allowing consumers to withdraw their consent by telling the callers to no longer contact them using their cell phone. Unfortunately, most callers won’t make any note of the verbal withdrawal of consent, and will continue to harass consumers. But when they do, so long as the consent has been previously withdrawn, the consumer can sue under the TCPA.

Big Business Fights Consent

But big business and debt collectors seem to prefer to litigate ways to allow them to do what they shouldn’t, instead of just following the law, so they have found a new angle, which appears to be working in some federal courts.

Their argument is that a contract is a contract, and one party to the agreement can’t change the terms of that contract after the fact by just verbally withdrawing consent. If you contracted to pay your friend $100 to paint your roof you can’t later just say “Make it $50.” A deal is a deal, as they say.

So big business has convinced some courts that consumers cannot withdraw consent by just saying so, because the consent is written in the contract agreed to in writing by the parties previously.

Courts Have Mixed Feelings About the Argument

Not all courts have gone along with this reasoning. Some have reasoned that because a contract doesn’t say that consumer consent to be texted or receive automated calls can’t be revoked, that must by definition mean that it can.

The issue will surely be litigated a lot more, but consumers who have previously signed agreements allowing these kinds of communications may find it more difficult to get them to stop.

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 if those communications continue.

Resources:

fcc.gov/general/telemarketing-and-robocalls

natlawreview.com/article/unlikely-pair-two-new-decisions-allow-consumers-to-unilaterally-revoke-written-tcpa

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