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47 U.S.C. § 227
The Telephone Consumer Protection Act (“TCPA”)
Annoying and Invasive Telephone Calls
Millions of Americans receive numerous annoying or harassing phone calls on their cell phones every day. These phone calls are usually from numbers that the recipient doesn’t recognize and can be placed by telemarketers, banks, lenders, debt collectors, or retail stores. Receiving unwanted phone calls on a cell phone is especially disruptive because people always have their cell phone on them. Since most of us are easily accessible because of technology, unwanted cell phone calls interfere with work, school, personal activities such as spending time with family, and these calls are a dangerous distraction while driving. More importantly, the unwanted phone calls are a direct invasion of privacy.
The United States Congress passed the Telephone Consumer Protection Act of 1991 (“TCPA”) with the intent to stop the harassing phone calls and prevent companies from invading the privacy of millions of Americans on a daily basis. Simply put, Congress designed the TCPA to protect consumers from unwanted calls and text messages. Indeed, the United States Third Circuit Court of Appeals in Gager v. Dell Financial Services, LLC confirmed that the purpose of the TCPA is to protect consumers from unwanted automated telephone calls that are a nuisance and an invasion of privacy.
The TCPA has been codified at 47 U.S.C. § 227 and the FCC has also promulgated regulations to further implement the statute.
Phone Calls Prohibited by the TCPA
The TCPA makes it unlawful for any person or business to make a telephone call using an automatic telephone dialing system or an artificial prerecorded voice to any of the following:
any emergency line
a telephone in a guest or patient room at a hospital, nursing home, or similar establishment
any phone number assigned to a cellular telephone service (i.e. a cell phone)
Notably, since the TCPA uses broad language covering any phone number assigned to a cellular telephone service, this law also encompasses any landline phone numbers ported to a cell phone or any phone number that is assigned to a cellular telephone service even if it is physically considered a “land line.”
Exceptions to the Prohibitions
There are two exceptions to this prohibition: (1) the phone call is made for emergency purposes; or (2) the phone call is made with the prior express consent of the party receiving the call. The second exception (prior express consent) is normally the exception that applies; however, a person’s prior express consent can be taken away as explained below.
Actual & Statutory Money Damages
If a person or business engages in this prohibited conduct, an aggrieved party can bring a lawsuit in federal or state court to recover any actual monetary damages, or $500.00 in damages for each violation that occurred (i.e. $500.00 for each illegal phone call made).
Additionally, if the court finds that the person or business placed the illegal phone calls knowingly or intentionally, the damages award can be tripled. This means that a person who is receiving phone calls that are in violation of the TCPA could receive between $500.00 and $1,500.00 per phone call assuming that the person has sustained no actual monetary loss.
How the TCPA Impacts You
If you are like me, you don’t answer your cell phone if you do not recognize the number. You just let unknown calls go to voicemail and check the message to find out if the call was from someone you know. Most of the time, the unknown caller does not leave a voicemail or there is just silence in the voice message. However, you do not need to answer the phone call in order for the calling party to be liable to you for damages under the TCPA. The caller only needs to use an automatic telephone dialing system or an artificial prerecorded voice and place the call to your cell phone or any phone that operates over the cellular network.
You Can Revoke Your Consent to Receive Calls
Many times though, the unwanted phone calls are placed by a debt collector or creditor. In this situation, the caller often has the prior express consent of the person he is calling, which is an exception to liability as described above. Consumers often provide their prior express consent to creditors to make these calls when the consumer first applies for credit. The fine print in credit card agreements and other contracts normally contains language stating that the consumer is providing their express consent for the creditor to call them regarding the credit card or for the purpose of collecting a debt. When a creditor sells a defaulted debt to a debt collector, the debt collector then stands in the shoes of the original creditor and gains consent from the consumer to place phone calls.
However, a consumer can take away any express consent that was given (intentionally or unintentionally) to be called. In Gager v. Dell Financial Services, LLC the United States Third Circuit Court of Appeals held that a consumer could revoke or take away their consent to receive phone calls. The Gager opinion also confirms that there are no time restrictions on when consumers can revoke their consent to receive phone calls.
The concept that consumers can take away any consent given to place calls to their cell phone is rooted in common law principles of consent. For example, if you invite someone into your house and then you decide that you no longer want that person in your home because he/she was stealing or otherwise acting inappropriately, you can ask that person to leave. If the individual does not leave, you can call the police and have the unwanted person removed from your property for trespassing.
How to Revoke Your Consent
Removing your consent to be called under the TCPA is very similar. You originally agreed, more than likely, without even realizing that you were agreeing to allow a creditor to call you. When the creditor begins to harass or annoy you, you can tell the creditor to leave you alone and stop calling you.
Even though telling someone to stop calling you is a simple task, many times creditors, debt collectors, telemarketers or others will continue to call anyway. When the calls don’t stop, you could file a lawsuit against the caller for violating the TCPA. However, it is much more complicated than simply filing a lawsuit; to do so properly, you should retain a lawyer to help you navigate the process.
Here, at Lampman Law we offer free consultations to help you end harassing or annoying phone calls. It doesn’t matter if the calls are from a creditor, debt collector, telemarketer, or some other caller, if you are receiving calls on your cell phone that you would like to stop, call us today. Again, the consultation is free and you could receive between $500.00 and $1,500.00 per call if the caller is violating the TCPA.