Unwanted text messages to your phone can annoy you. You may automatically check your phone when you get a text message notification. Some people will stop what they are doing to read the text, only to discover a junk text from a telemarketer or scammer.
In this day and age, we not only have to deal with constant calls from strange numbers, but also texts and other messages.
Text messages you did not consent to are more than bothersome - they may also violate federal or state law. The law restricts how and when certain parties can call consumers, and the law can sometimes extend to text-based messaging. You may seek financial compensation if you received unwanted spam text messages.
First, consult a California TCPA lawyer to see if you can file a lawsuit against the entity responsible for the texts. An attorney who regularly handles TCPA claims can evaluate your rights and advise you if you have a possible case. If so, they can gather evidence of violations and initiate legal action against the parties.
You do not simply have to live with constant junk text messages. Take the first step and speak with a TCPA lawyer today.
TCPA Covers New Technologies and Situations
President George H.W. Bush signed the Telephone Consumer Protection Act into law in 1991. At that time, cell phones were not in widespread use. Practically all households had landlines. Steve Jobs and Apple Computer were more than a decade away from popularizing the smartphone that changed the world. There was no such thing as texting more than three decades ago when the law first took effect.
Nevertheless, TCPA is a flexible law that governs more than one type of communication. Consumers can hold companies liable for more than just plain phone calls. TCPA covers text messages, even though the law does not directly reference them. If you received unwanted text messages you did not consent to, you can file a lawsuit, resulting in financial compensation.
TCPA was intended to protect consumers. Namely, unwanted communications from a company to which you did not consent can compromise your privacy, even when no human is on the other end. They can put you at risk of fraud - becoming much more than an annoyance.
The FCC Issued Rules That Covered Texts Under TCPA
TCPA is a living statute under the power granted to the Federal Communications Commission. Ordinarily, you might think that Congress would update the law to bring text messages within its confines because the original law did not cover them. The law gave the FCC the power to regulate and issue TCPA rules. The FCC has the power to bring certain things under the coverage of the TCPA through its rulemaking power. The FCC did that in 2012.
The FCC explicitly changed the rules to include texts in 2013. According to the FCC, text broadcast systems that randomly sent texts were similar to automated telephone dialer systems that the TCPA prohibits. The FCC issues rules and takes enforcement actions against companies based on these regulations, although fines go to the United States Treasury, not victimized consumers.
In 2016, the FCC issued an Enforcement Advisory that clarifies how the agency views text messages in the context of the law. The FCC explicitly stated:
"The FCC has stated that the restrictions on making auto-dialed calls to cell phones encompass both voice calls and texts. Accordingly, text messages sent to cell phones using any automatic telephone dialing system are subject to the Telephone Consumer Protection Act of 1991."
When Companies Are Allowed to Send You Texts
A company must follow several compliance requirements before they send you a text message:
- You must have given prior consent in writing for the company to place you on any subscription list.
- When the company sends you a text, they must inform you that you can opt out by responding with "STOP."
Regarding text messages, prior written consent can take on many forms. You might have filled out an online form allowing the company to text you. Alternatively, you may have texted a number, knowing that the text will place you on a subscription list.
Prior Written Consent Does Not Allow A Sender to Do as They Please
The company must still follow several requirements even when you have signed up to receive texts. For example, they must inform you how often they will send you texts. They must inform you of the purpose of the messages and give you access to the terms of the condition. In other words, you may have permitted the company to send you texts, but they can still violate TCPA.
Here are some ways that a company can violate TCPA, even when you have permitted them to text you:
- The company may have said that they will send you weekly texts, and they send you communications far more often than that.
- The company sends texts outside of the hours prescribed by TCPA (they cannot communicate with you between 9 p.m. and 8 a..m.)
- They do not allow you to opt out or tell you how you can do it.
- They do not identify the business name in the communications.
You Need to Know the Proper Entity to Sue
Before you can file a lawsuit, you will need to learn the proper defendant. There may even be more than one company that can be liable to pay you. One of the first things a defendant may do once they are served with the lawsuit is to determine whether they had anything to do with the texts.
What may appear true on the surface of things may not be reality. The telemarketing industry often operates in its reality, with complicated relationships between parties. Your attorney will need to perform an extensive investigation before they file the lawsuit complaint against the responsible party or parties.
You can hold a defendant liable for a TCPA violation in two ways:
- They can be the ones who sent you the text directly
- They can have directed a third party to send the text on their behalf
Damages in a TCPA Lawsuit
The TCPA provides up to $500 in damages for each illegal communication. If the defendant knowingly breaks the law, the damages can increase to $1,500 per violation. If you do the math to figure out how much companies may need to pay for widespread violations of TCPA, you will understand exactly why businesses are so afraid of TCPA lawsuits. Still, this fear does not keep them from breaking the law in the first place.
The consequences of violating the TCPA with illegal text messages can be steep for businesses. Most junk text messages come through automated programs. Consumers usually receive far more than one illegal text message from a telemarketer. They may even receive dozens of these messages or more. Then, companies send illegal text messages to hundreds of thousands of recipients.
Theoretically, any company that violates the TCPA can be facing crippling liability. In reality, many TCPA lawsuits will reach an out-of-court settlement before the case goes to trial. The defendant knows the potential consequences, and they are eager to avoid them. Some defendants will look to settle as soon as they receive a demand letter from the plaintiff's counsel.
Still, you should prepare for litigation if the defendant chooses to fight your case in court. If the defendant litigates the case, they risk quite a bit because they can be hit with large-scale damages.
TCPA Lawsuits for Illegal Texts Are in a State of Flux
Courts may be tightening plaintiffs' ability to file TCPA lawsuits for some text messages. For example, the Ninth Circuit Court of Appeals recently held that text messages did not constitute pre-recorded messages under the TCPA because they did not feature human voices. In some cases, courts will strictly read the statute and adhere to the exact language of the statute.
Note that you still can file a lawsuit when the defendant has used a system similar to an automated telephone dialing system to send you text messages. Here, you might have needed to give prior written consent to the company before they sent you texts. However, recent decisions have held that agreeing to participate in sweepstakes and contests can constitute prior written consent.
Recent Court Decisions May Require New Legal Strategies and Theories
TCPA is an area where there is frequent litigation. The rules in this field constantly change.
First, courts change long-held doctrines and issue new precedents with frequency. For example, the Supreme Court wrote a significant decision in Facebook, Inc. v. Duguid that narrowed the scope of the TCPA. Even with this decision, plaintiffs have found other ways to sue defendants under the TCPA. In many contested cases, the result will come down to how the judge chooses to read the statute.
In addition, the FCC is continuously exercising its power to regulate under the TCPA. The FCC often issues new rules to clarify specific definitions and add new aspects to TCPA coverage (like it did with text messages). While the courts ultimately interpret the law, the FCC's rules can lead to additional areas of liability for TCPA defendants.
For example, the FCC has issued a Notice of Proposed Rulemaking that may impose obligations on network providers to block illegal text messages at a network level. Thus, a major new front in TCPA liability may go into effect.
However, some judges may choose to ignore some of the FCC's rules and interpretations. Any TCPA case involves uncertainty, and much can depend on the jurisdiction and the particular judge.
State Laws Could Also Cover Unwanted Texts
In addition to TCPA, your lawyer will check any state laws in your jurisdiction that can cover junk texts. Some states have even stricter laws against unwanted texts. For example, California has robocall laws. Most lawsuits are filed under federal law, but state laws may allow you to sue in state court.
You Need a Lawyer for a TCPA Case
Thus, you always need an attorney in a TCPA case. In some instances, how your attorney frames the allegations in your complaint can determine whether you are successful. You must have a lawyer well-versed in recent trends in TCPA litigation to know what particular arguments have a greater chance of success.
Defendants know the stakes when they receive a TCPA demand letter or are served with lawsuit papers. There are high-priced law firms that regularly defend TCPA lawsuits. In some cases, they may even want to take your case to court so a court can make new precedent that benefits businesses. Some defendants can look to settle quickly, while others may want to fight as long as possible.
TCPA Lawyer Work for You on a Contingency Basis
Like any consumer protection lawyer, it will not cost you anything to hire a TCPA attorney upfront. Your TCPA lawyer is paid on a contingency basis. They are only paid if you win your case. Your attorney is then paid from the settlement proceeds or the award (the TCPA does not provide for attorney's fees to be awarded to the prevailing party in the case).
Consult a TCPA lawyer in California if you receive unwanted texts to which you did not consent and explore whether you can file a lawsuit or join an existing class action case. You may recover financial compensation.