If you receive unwanted telemarketing calls that violate the Telephone Consumer Protection Act (TCPA), it is important to understand your rights and take action. While the TCPA protects unsolicited calls and text messages, dealing with the legal process to enforce these rights can be challenging.
The Telephone Consumer Protection Act attempts to balance the interests of telemarketers who want to grow their business with those of consumers who wish to maintain their privacy. The TCPA prohibits several practices, including automated telephone dialing systems. However, some exceptions allow telemarketers to continue to make specific types of phone calls, which may apply broadly to certain classes of phone calls.
If a telemarketer violates the TCPA, you can file a lawsuit against them. Based on your situation's facts and circumstances, you can file an individual or class action lawsuit against the telemarketer and receive damages on a per-call basis.
However, the telemarketer may argue that some exceptions apply that can keep them from being liable for unwanted calls. Often, the success of your case can come down to whether you can counter the telemarketer's defense that their call was legal.
If you have received unwanted calls or faxes that you believe may have violated federal law, you may have the legal right to financial compensation if you file and win a TCPA lawsuit. Contact an experienced TCPA lawyer to learn about your legal rights. These lawyers advocate for individuals who have been the victims of illegal business practices. They have extensive knowledge of the TCPA and other relevant laws and can guide you through the legal complexities of a TCPA lawsuit. A consumer protection attorney can provide legal representation as you seek payment for the illegal phone calls. It costs you nothing out of your pocket to take legal action against the telemarketer.
TCPA Lawsuits Can Be Costly for Telemarketers
Telemarketers have every reason to fear you because TCPA lawsuits can lead to large settlements and jury awards. Given that the court can order the telemarketer to pay on a per-call basis, they can face theoretical unlimited liability. Thus, the prospect of a TCPA lawsuit sends chills up the spine of many companies. If someone even accuses them of violating the TCPA, they will immediately hire experienced lawyers in the field to either defend them or negotiate a settlement on what may be favorable terms for the company.
The number of TCPA lawsuits has been increasing. In a recent year, 1,655 lawsuits were filed under the TCPA, an increase of nearly 10 percent from the prior year. Many of these lawsuits are class action cases, as the number of these lawsuits increased by over 40 percent in the most recent full year. TCPA litigation is busy for consumer protection attorneys, especially considering the high damages the court may award the plaintiffs.
Why Congress Passed the TCPA
Congress passed the TCPA, and President George H.W. Bush signed it into law in 1991. Congress saw the need to protect consumers because junk calls and faxes were inundating them. In the early 2000s, Congress included junk texts in the law because companies were using this new medium of technology to flood consumers with unwanted messages.
Communications the TCPA Prohibits
The TCPA has strict provisions that prevent many petty annoyances that a business may subject you to. Specifically, the law includes the following limitations:
- Businesses cannot use a robot dialer to make pre-recorded calls to cell phones, emergency lines, or patients in hospital rooms.
- Businesses cannot use automated dialers to make voice calls.
- Consumers can add their names and numbers to a national Do-Not-Call Registry, which will prohibit telemarketers from calling them.
- Telemarketers cannot send unsolicited texts to cell phones.
- The TCPA prohibits harassing calls in connection with debt collection efforts.
- Telemarketers cannot use an automatic telephone dialing system so that two or more telephone lines of a multi-line business engage simultaneously.
While many of the law's prohibitions apply to calls made to residential lines, the TCPA also allows the Federal Communications Commission to make rules to limit calls to businesses.
Businesses May Have a Right or Need to Contact Consumers
One of the primary purposes of the TCPA is to prevent automated calls that subject consumers to petty annoyances. However, there may be a legitimate need for businesses to contact customers or potential customers. In some circumstances, companies will maintain the right to contact residential lines. Accordingly, exceptions in the TCPA may allow for some calls and communications.
Exceptions to the TCPA
Some categories of exempted phone calls from the TCPA include:
- Commercial calls that are not for solicitation or advertising
- Calls that do not use an autodialer and are not for commercial purposes
- Emergency calls
- Phone calls for compliance with the Health Insurance Portability and Accountability Act
- Phone calls to alert the recipient that they have a package
- Calls made to a wireless phone number for healthcare or financial institution purposes
There is an exception to the TCPA for calls with an established business relationship. In that event, the calls are not for solicitation or advertising; the communications are for customer service or growing the existing business relationship. In addition, the TCPA may exempt texts if the business makes them manually and not by an automated system.
The Existence of an Exception Is a Key Issue in Many Lawsuits
In many cases, the success of your TCPA lawsuit depends on whether you can prove that an automated system made the calls. The law defines an automated telephone dialing system as storing or producing telephone numbers or using a random or sequential number generator to dial numbers. There are often factual and technological questions about what makes an automated telephone dialing system. If the telemarketer uses something that does not meet the legal definition of an ATDS, they may still try to contact you.
Some Broad Categories of Calls May Be Exempt
Specific categories of callers are exempt from the TCPA; some have expressed First Amendment concerns about the law and even sought to have it struck down entirely. In particular, many have expressed concerns that restricting political calls can inhibit free speech. Thus, political calls are exempt from the restrictions of the TCPA. In addition, there is also an exemption that allows non-profits to call you and not face penalties under the TCPA.
The Supreme Court Has Narrowed the Scope of the TCPA
The Supreme Court has narrowed the scope of the TCPA to broaden some of the exceptions to the law. In Facebook v. Duguid, the Supreme Court had to determine the exact scope of an automatic dialer system. The Court narrowed the application of the TCPA by holding that an autodialer was only equipment that generates numbers randomly or sequentially. Because of this decision, if the telemarketer makes automated calls to you using a machine that cannot create numbers, they are not violating the law. Even though the Court narrowed the TCPA, it is still possible to file and win a lawsuit. In fact, the number of TCPA cases continues to grow in the wake of that decision.
The Supreme Court believes that the Telephone Consumer Protection Act is a targeted law that should not hinder a business's ability to contact you. In narrowing the bar for autodialers, the Court said that Congress intended to use a scalpel to address the problem of telemarketer calls instead of a chainsaw.
The FCC Can Make Exceptions to the TCPA By Rule
In addition, the law also gives broad regulatory authority to the FCC to make exceptions. The FCC may exempt calls businesses do not make for a commercial purpose, calls that will not adversely affect privacy rights, or calls that do not include the transmission of any unsolicited advertisement.
Even if an exception to the TCPA applies to telemarketing calls, there are still limitations. The telemarketer does not get a blank check to call or contact you as much as they want just because there is an applicable exception. The FCC has new rules that limit the number of calls placed to a consumer under an exception (although not emergency calls) to three in 30 days. The telemarketer can still be liable if they make permitted calls but too many.
TCPA exceptions can be a very difficult landmine for telemarketers to navigate. Many try to operate around the margins of the law, so they may stretch an exemption to continue to contact you. They may try to justify their calls retroactively to escape liability. However, the law also requires the telemarketer to have policies and procedures for making calls under a TCPA exception.
You Can File a Lawsuit Against the Telemarketer Under the TCPA
If a company breaks the law, you can act independently. Of course, you can report any violation to the Federal Communications Commission, which may take enforcement action against the telemarketer. However, that course of action may not put money in your pocket. The TCPA allows you to enforce the law by directly filing a lawsuit against the telemarketer.
When you file a TCPA lawsuit, the possible exceptions may come into play. The telemarketer may try to rely on one of them as their defense to the lawsuit. Since they may be liable for significant damages, they may look for any defenses possible at the outset of your case to minimize or eliminate their potential liability. If the telemarketer chooses not to settle the case and fights it all the way to a decision on the merits, the judge or jury will need to decide whether an exception applies. Your eligibility for financial compensation may depend on whether there is an applicable exception.
Damages in a TCPA Lawsuit
If you win your TCPA lawsuit, you may have the legal right to the following in compensation:
- Up to $500 in compensation for each violation of the act (a text or phone call) if the telemarketer negligently violated the TCPA
- Up to $1500 per violation (treble damages) if you can prove that the telemarketer intentionally broke the law
- The actual damages that you have suffered from the illegal conduct
The TCPA does not provide for punitive damages, but the treble damages provision of the law acts similarly. Further, unlike other consumer protection lawsuits, the TCPA does not allow you to receive attorney's fees for your case.
A Consumer Protection Lawyer Costs Nothing from Your Own Pocket
However, you also do not need to pay a consumer protection lawyer out of your own pocket. A consumer protection lawyer works for you on a contingency basis, meaning they get paid nothing unless you win your case by receiving a settlement or jury award. Their pay comes directly from the proceeds of your pay should you get anything. If you do not win your case, you do not have to pay a consumer protection attorney anything. Thus, you have everything to gain from hiring a consumer protection lawyer and nothing to lose.
A consumer protection lawyer will handle all the legal formalities and represent your interests in court. They will guide you through the legal system, from filing the lawsuit to negotiating settlements or presenting evidence at trial. Their help can be a tremendous relief, allowing you to focus on other aspects of your life while knowing that a skilled legal professional is fighting for your rights.
Moreover, hiring a consumer protection lawyer sends a clear message to telemarketers and companies that you are serious about protecting your rights. These lawyers have a reputation for holding businesses accountable and seeking client compensation. When telemarketers know you have legal representation, they are more likely to take your complaints seriously and work towards a resolution.
Call A Consumer Protection Attorney for a TCPA Violation
If you are dealing with TCPA violations and unwanted telemarketing calls, hiring a consumer protection attorney can make a significant difference in your ability to enforce your rights and seek justice. Their experience and dedication will ensure you have the best chance of getting a favorable outcome in your TCPA lawsuit. Take action today and protect yourself from unlawful and intrusive telemarketing practices.