FAQ on Calls to Cell Phones That Violate the TCPA


FAQ on Calls to Cell Phones That Violate the TCPA

TCPA calls to cell phonesIt is very common for calls from a creditor or debt collector to be auto dialed (computer dialed or robo dialed) or to contain a pre-recorded message (sometimes called “robocalls”).

When these types of calls are made to your cell phone, the debt collector often violates the Telephone Consumer Protection Act (TCPA) which is a powerful law in your favor.


“I’ve Heard About Express Consent Under The TCPA, What Does That Mean?”

The collection and telemarketing industry want to make this seem burdensome and complicated.  

It’s not.

Let’s look at the words.

“Express” simply means it is clear.

Not vague.

Not implied.

But actually giving permission.

“Consent” means you agreed to it.

Not that the collector got your number off of caller ID.

It doesn’t mean that your buddy downloaded an app and now that app is blowing up other peoples’ phones.

Let’s look at a common example.

You get a new phone number.

The next day or week, automated business texts and calls flood your phone.

Did you give permission?  

No.

Did you give consent?  

No.

Did you give “express consent” to these calls and texts?  

No.

Its kind of like this.

If someone gives you a key and say, “Come over to my house any time and help yourself.”  

Then you have permission.

But what about when the owner sells the house.

Do you still have permission to go into the house?

No.  The permission (“express consent”) ended when the former owner sold the house.

If you go in, that is trespassing.

These companies get one free pass, but after that they’re violating the law if they keep calling you.

Oh, and they absolutely hate this law.

When you hear them crying on TV about this, remember our example of the house key.

No sympathy — if you want to use a key, check first to make sure you have the right house and still have permission to walk into someone’s world — their house or their cell phone.


What Are Auto-Dialed Or Computer Dialed Calls Under The TCPA?

In the past, debt collectors would call “by hand” – that is, they would dial the number personally.

But given the low rate of contact, it is more efficient to have a computer system make all of the calls.  

Then, if a person answers the phone, the computer will send the call into the headphone of a collector.

They’ll pull up your information on the collector’s computer screen.

So the basic idea behind an “auto-dialer” call is that it was dialed by a computer without human involvement or with not much human involvement.

Normally the collectors or telemarketers will direct the frequency of contact (5 times a day, every 2 days, etc) and then the computer or telephone system will make the calls.

One harassing aspect is sometimes you answer and if there is not a collector available the system hangs up on you (“dead air”) or it plays a pre-recorded message “Please hold for the next available representative” which is discussed in the next step.


What Are Pre-Recorded Message Calls Under The TCPA?

As the name suggests, this is a message from either a human or computer that is not given “live” but instead is recorded. The computer or mechanical voice is usually very easy to detect.

The human voice can be more difficult but normally you can tell.

Either the message is too perfect and you have five of them on your voicemail that are identical or your name will be said by someone else.

The message will sound like this:
“This message is only for ________ [odd computer sounding voice saying your name], if you are not __________ [again the computer voice of your name], then please hang up…..”

Or it can be when you answer the phone that you hear a pre-recorded message about “hold for the next available representative.”

This means it is an auto dialer and a pre-recorded message.

These calls are also known as “robocalls” as you can’t speak to the person calling — it is just a computer or a “robot” calling you.

Very annoying….


How Do I Prove The Calls Were Made?

Save your voicemails that have the pre-recorded messages for you.

Pick up the phone and see if a human being is on there when you answer.

Ask the collector or the telemarketer if you are being called with an autodialer.

Make detailed notes immediately after determining any of this information.

Take a picture of caller id screens as this can show the calls coming in.  You should be able to easily take a screenshot of your cell phone — just go to the section on the call.  Then email that picture to yourself — preferably a gmail type of account so it will be stored in the cloud.

Often collectors or marketing folks will conveniently forget about 95% of the calls they made until they realize you have proof.

Then they suddenly discover that you are in fact correct.

We have sued collectors who swore to us they only made 5 calls but then when the depositions came, they admitted to making over a 100 calls.

On your cell phone, take a screenshot of any information about the call — if you don’t know how to do a screenshot, Google it or ask anyone under the age of 20 (my preferred tech solution technique!)….

So any documentation you can get is wonderful and will truly be helpful to your case.


What Benefits Do I Get From The TCPA?

Congress has treated our cell phones with the same level of respect as a hospital room phone (collectors use to autodial hospital rooms even after the patient left!) and so the statutory damages are pretty serious.

You can obtain actual damages but most people are satisfied with the statutory damages.

It is $500 per call or up to $1500 per call.

The $500 is if the call was unintentional.

The up to $1500 is for intentional calls and violations of the law.

The more you tell the collector to stop calling your cell phone and that there is no permission, the more likely the calls will be deemed “intentional” and you can receive the up to $1500 per call.

Given how these collectors and creditors will sometimes call people as many as five or ten times a day with these illegal types of calls, you can see how powerful this law is for consumer protection.

We have had cases involving hundreds and hundreds of calls.


What About Automated Text Messages To My Cell Phone — Are These Covered By The TCPA?

What is remarkable is that the industry used to claim (still do) that text messages are not “calls” under the TCPA so they could blow up your cell phone with a dozen automated text messages a day with no liability.

Crazy, right?

The courts have consistently told the industry that text messages are the same as calls.

If consent wasn’t given, and if those texts are not human driven,  then there is liability.


Okay, I Know What These Calls Are – When Are They Illegal?

A creditor or collector can only use auto dialed calls or pre-recorded messages to your cell phone if you gave permission.

This area of the law is somewhat controversial but if you gave the original creditor (credit card, car loan, etc) your cell phone number when you opened up the loan or card, then the collector will normally have permission.

The collectors argue that if you ever gave your cell phone to the original creditor (even if it was pulled off caller ID which is ridiculous), this is “permission” but that is not what the law says.

Nevertheless, the safest thing to do is to “revoke” permission over the phone and in writing (certified mail, return receipt requested), so there is no question any more about permission.

Then all the calls after you revoke permission will certainly be illegal if the collector or creditor continue to unleash the auto dialed and pre-recorded messages against your cell phone.


Closing Thoughts About How To Use The TCPA To Give You Back Control Over Your Cell Phone

Collectors hate this law with a passion.

These collectors understand the Fair Debt Collection Practices Act (FDCPA), which has a maximum of $1000 statutory damages.

Collectors can easily and often violate the law with not much downside (note – you can sue for actual damages but oddly many attorneys don’t do this) to violating the FDCPA.

Any type of creditors are even worse, because they need to deal with the the FDCPA now.

But when we sue them for a 100 calls under the TCPA, they are in shock.

They just can’t believe they face this sort of exposure.

They think they have a God given right to wear out your cell phone with multiple auto dialer calls a day, every day.

Congress had to take such drastic means to try and stop not only collectors but also telemarketers that were terrorizing people’s cell phones.

The key for you is to take action — you must not only “know” this law but you must also take action.

This will do several things:

  • You won’t be a victim.
  • It will help you encourage companies and industries to do the right thing
  • You will receive money damages

Contact Us.

If you are reading this short guide, we trust you are receiving these annoying types of calls on your cell phone.

We congratulate you on looking into this law.

If you live in Alabama, let us know if we can help you in any way.

You can reach us at 205-879-2447 or you can contact us through our website.

I look forward to chatting with you!

Have a great day.

-John G. Watts


6 Comments

  1. Dave Krumm says:

    Due to repeated calls to my cell phone for a ‘Victoria Walton’ I signed up my cell phone # at the National Do Not Call Registry but the calls kept coming.

    So after 31 days I checked my registration at the Do Not Call Registry & received this message back:

    “Thank you for registering your phone number with the National Do Not Call Registry. You successfully registered your phone number ending in 0804 on October 16, 2012. Most telemarketers will be required to stop calling you 31 days from your registration date.

    However, the calls still kept coming at a minimum rate of three or more times a day.

    Sometimes they would answer & when asked why they called me I would get 3 / 4 down tones & they’d hang up.

    If I was put on hold the call would cost me a dollar a minute so I quit calling back.

    Initially I reported some of the calls to:
    https://complaints.donotcall.gov/complaint/complaintcheck.aspx?panel=2
    thinking the government would put a stop to this. They have not.

    So I started reporting every call received every day for the past 30 days. The volume has decreased to 3 calls a day except on holiday & Sundays. While I’ve not kept a record it can be verified at the Government site.

    Here are most of the #’s used in calling me:

    404-804-6323 – 706 225 7006 – 706 405 3545 – 706 405 3645 – 706 250 4705 – 706 250 4706 – 706 250 4708 – 762 208 3200 – 762 208 3210 – 762 208 3215

    Being retired & on S.S. I’ve a limited income. I probably do not have the necessary funds to retain your services but would like to nail these people for harassment.

    So if you think you can win please give me your rate & I’ll see if I can get up the amount needed.

    Thanks much,
    Dave

    • JohnGWatts says:

      Dave,

      I’m sorry you are dealing with this.

      There is no charge for us to meet with you if you live in Alabama (we can’t help you if you are out of Alabama).

      If we can take your case, we get paid at the end out of any award or settlement. You don’t pay us any money up front.

      Give us a call at 205-879-2447 and we’ll be glad to chat with you.

      Have a great weekend…

      John Watts
      Birmingham, Alabama

  2. Dee says:

    If you are sued by a debt collector (Asset Acceptance) and win in court (case was dismissed with prejudice), can you sue and win if they ignore it and continue to call you? Souldn’t they have to automatically stop without being verbally told or having to send a cease and desist letter?

    Our case was dismissed with prejudice in June and they have decided to start calling with increasing frequency the last month or so. They sometimes call my husband’s cell, but have gotten my cell # and also my son’s. They have started calling it regularly and have left messages that they are a debt collector and to hang up if you are not the intended party.

    We want them to stop all attempts to contact anyone, at any number, and to also remove the collection claim from my husband’s credit report like they should have done

    • John Watts says:

      Dee,

      I’ll answer this with how it works in Alabama which I assume is where you live.

      First, congrats!! Getting a dismissal with prejudice (unless it was part of a settlement which occasionally changes the result) means your husband does not owe the debt.

      If he does not owe the debt, then there is no reason to call and collect on this account. You do have to verify if Asset is calling about a different debt but assuming it is this debt, there is no legal basis to call. Ever again.

      Calling your husband’s cell normally means the TCPA (Telephone Consumer Protection Act) applies as Asset normally doesn’t manually dial these calls. So every call can be $500 or up to $1500 per call.

      There is no basis to call your cell or your son’s cell. Again these are likely violations that would be closer to the $1500 per call as there is no excuse for this to happen.

      SAVE all of your messages.

      Take screenshots of all missed calls.

      What it sounds like is Asset has probably violated the following laws:

      **TCPA with every call since at least the victory in June

      **FDCPA (Fair Debt Collection Practices Act) by calling to collect a debt that the judge said is not owed. This includes your husband, you and your son’s cell phones.

      **FDCPA as Asset is credit reporting — no basis to credit report when Asset lost. We have recently sued Asset in Federal Court for doing this.

      **FDCPA for filing a bogus lawsuit as your husband did not owe the debt.

      **State law including “Malicious Prosecution” which is where a lawsuit was filed without any basis. Normally these debt buyers show up to trial with no proof, no evidence, and no intent to even try to prove their case. These are really extortion type cases.

      Feel free to give my office a call at 205-879-2447 and ask Carolyn to set you up a call with me and I’ll be glad to go over your options. You can make Asset not contact your family about this debt and to remove any credit reporting. Normally the best way to do this is to sue Asset in Federal Court for money damages. That gets their attention. 🙂

      John Watts

  3. Ingrid Bell says:

    I had to ask myself if I was losing my mind because three times this week I picked up my phone, listened for the dial tone and entered the number that I was trying to call. Then I hear a voice that says can I have your name and phone number? I’m like wait a minute, I know I just dialed a doctor’s office and I wouldn’t be greeted like this. So I’m like who is this and they said, “Can I please have your name and phone number”. I’m like know because I didn’t call you so please explain to me how you are on my line when I am attempting to make a call. They just hung up, I know who the bill collector was, but I asked how are you doing thing cause this isn’t right. It’s funny because they have been calling from a 706 area code and each time I made a call to a 706 number this has happened.

    • John Watts says:

      Ingrid,

      That is very unusual.

      Does this place call you where your phone rings? Is this your cell or your home phone?

      Do you get letters from this debt collector?

      If you are in Alabama, give us a call and we’ll do our best to help you. The debt collectors are always coming up with new ways to try to get to you — whether it is placing voicemails on your phone without it ringing, spoofing or disguising caller ID, etc.

      What you are describing is definitely new to me but we can help you if you are in Alabama. Call us at 205-879-2447.

      Thanks and hope to talk to you soon.

      John Watts

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