FAQ on Calls to Cell Phones That Violate the TCPA
FAQ on Calls to Cell Phones That Violate the TCPA
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.
Let’s look at the words.
“Express” simply means it is clear.
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?
Did you give consent?
Did you give “express consent” to these calls and texts?
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.
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.
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
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.