TCPA Violations (Telephone Consumer Protection Act)

Consumers have a right to go about their day without having to field incessant and unwelcome calls from solicitors or debt collectors.

The Telephone Consumer Protection Act (TCPA) grants consumers respite by barring companies from making unwanted calls, and slapping violators with fines of anywhere from $500 to $1,500 per call. Violations of Florida law can result in additional penalties.

The consumer rights lawyers at Jacobs Keeley know that when the law first passed in 1991, it was focused primarily on the ground line telemarketing industry and others engaged in “blast faxing.” This is where marketing firms and debt collection agencies employed automated systems to reach potential customers or debtors.

Technology has evolved rapidly since then, but the goals of these firms have largely remained the same. Today, marketing firms and debt collection agencies have shifted their focus almost entirely to mobile devices, cloud-based technologies and third-party vendors in an effort to keep up with evolving communication platforms.

Recent amendments to the TCPA help the law remain aligned with the evolving actions of violators.

Victims of TCPA violations are entitled to file individual lawsuits or to join class-action litigation for receiving unsolicited telemarketing calls, faxes, text messages, pre-recorded calls or autodialed calls. The law also restricts calls to hospital guest rooms and emergency numbers.

These lawsuits have resulted in huge payouts from large firms found to have routinely and knowingly violated federal and state consumer protection statutes barring this conduct.

Consumer Rights Under TCPA – Unsolicited Marketing Calls

The Telephone Consumer Protection Act is codified in 47 U.S.C. 227.

The statue is extensive and complex, but essentially it bars unsolicited contact by businesses to consumer phones and fax machines without first obtaining proper consent.

To better understand your rights under this statute, it’s important to expound on the terms commonly referenced in relationship to it.

  • Telemarketing call. This is a call initiated by advertisers that offer or market products or services to consumers. Purely informational calls or those made for non-commercial purposes are exempt from this regulation.
  • Autodialed call. These are calls involving either a real person or pre-recorded message that is initiated through the use of an “autodialer,” or automatic number dialing system. These systems produce, store and call numbers using random or sequential number generators.
  • Robocall. This is when a firm uses an autodialer to issue a pre-recorded message.
  • Call. The statute recognizes “calls” as including not only those made to ground lines and wireless phones, but also messages sent via SMS text message.

Two recent amendments to the statue by the Federal Communication Commission, effective October 2013, hold that:

  • Unambiguous written consent from a consumer must be obtained before companies can initiate marketing calls or texts (except when calls are manually dialed and do not contain pre-recorded messages);
  • An established business relationship between the consumer and the company (such as a previous purchase) no longer relieves the company of the unambiguous written consent requirement.
Florida Telephone Solicitation Statutes

Florida law provides additional protection to consumers with the Florida Telemarketing Act, as well as restrictions on telephone solicitation, as listed under consumer protection statutes outlined in Chapter 501.

Under Florida Statute 501.059, any telephone solicitor who make unsolicited calls to residential, mobile or paging devices must immediately identify themselves by their true first and last name, as well as the business on whose behalf he or she is calling.

People who don’t wish to receive sales solicitations can register with the Department of Agriculture for a $10 initial fee (and $5 annually), and solicitors who call these numbers anyway can face penalties.

Also barred under the statute are automated calls connecting consumers to pre-recorded messages.

Meanwhile, the Florida Telemarketing Act, codified in Florida Statute 501.616, requires commercial telephone sellers to be licensed and restricts calls to between 8 a.m. and 9 p.m. (local time for the person being called).

Consumer Rights – Do Not Call

Violations of Do-Not-Call provisions is the most rapidly growing category of complaint, according to a recent survey conducted by watchdogs at Consumer Federation of American and the North American Consumer Protection Investigators.

Despite all these protections, technology such as internet phone service, caller ID-spoofing software, prepaid cell phone and auto-dial systems make it easy for companies to skirt the law.

In addition to filing complaints with federal regulators, consumers are also filing lawsuits.

In August 2014, Capital One Financial Corp. and several others working with it collectively settled a TCPA class action lawsuit for more than $75 million. The action was related to debt collection calls without callers obtaining the proper prior written consent.

In another case in October 2014, AT&T agreed to settle a TCPA class action case for $45 million, after evidence showed the agency made calls using automatic phone dialing systems and prerecorded voice messages to cell phones without obtaining prior consent from recipients.

Contact the Miami Consumer Protection Lawyers at Jacobs Keeley Trial Lawyers for a confidential appointment to discuss your rights.

Call us at (305) 358-7991.

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