TCPA: Follow Up Questions After the 5 Keys

TCPA:  Follow Up Questions After the 5 Keys

TCPA:  Follow Up Questions After the 5 KeysSo we went through some background information on the TCPA (Telephone Consumer Protection Act) as well as the five keys to protecting yourself with this law.

Now here are some questions we have been asked.  We’ll add to this as we get more questions.

Are debt collectors covered under the TCPA?

A lot of times, debt collectors take the position of, “We’re not subject to that law.”

I know the kind of legitimate that they would make that really incorrect statement, but you really have to read things completely out of context to even be able to argue this with a straight face. Yes, they’re absolutely covered by the TCPA.

They will occasionally make arguments that say, “You’re violating my First Amendment rights.” No. “We’re not trying to collect the debt. We’re just trying to contact you to get you to pay the debt.”

The courts say, “That’s debt collection, and you’re using an autodialer.”

There’s really no dispute about that.

If the damages can be so high, why do companies violate the TCPA?

I think the answer is because the companies are still experiencing that the vast majority of people have no idea that this is illegal, particularly in a debt collection context.

Your credit card company is calling you.

A debt collector is calling you.

A mortgage company is calling you.

Most people think, “They’re trying to collect the debt, so I guess they can call my cell phone,” or, “I don’t have a cell phone, so they have the right to call my cell phone.”

Here’s the thing.

It’s true that, if all you have is a cell phone, they have the right to call the cell phone, but they can do that with a human being.

They don’t have the right to send you a text message.

They don’t have the right to use a robodial call against your cell phone.

There is no constitutional right where they can send text message to you.

They have the right to do that if you gave permission.

Sometimes companies will say, “Sir, for us to remove your cell phone from the computer dialer, you must give us another number.”

You say, “Well this is my only number.” “Well then, sir, we will continue to call you five to ten times a day.”

They can say that, but they’re violating the law, and that’s willful. You’re really looking at pretty significant damages.

But most people don’t know about this law, and if you don’t know about it, then it’s safe for them to violate the law because there are no consequences.

As you become more aware of this, then slowly we’ll see companies stop doing this, once the pain is enough. Right now, it’s a dream for them.

Years and years ago, it would take really big computers to do all this.

You can actually set up your iPhone to be an autodialer, and you could say, “Send all these text message or voice broadcasts out.”

What we have in our hands is enough to do this. It’s very cheap and very easy.

They’re making a ton of money on it. Until the pain of the lawsuits is enough, they won’t stop doing this.

Are these cases I should file on my own or hire a lawyer?

That really depends. If you’re talking about a small number of calls – two, three, four, or five calls – you may want to go file suit in small claims court.

But particularly as you get into any number of calls – ten calls, for example – that may be a $15,000 case, and there may be other laws that were violated that can increase that, or award attorney’s fee, or punitive damages, or whatever else it may be.

These companies start fighting these pretty hard because their exposure is significant.

If you have any number of calls (more than just a couple), then I think you’d be better off hiring an attorney.

Obviously, sit down with the attorney and find out what they charge, what their experience is, and what they expect to happen in this type of case.

If you have just two or three calls and you want to do it on your own, small claim court is one way to do it.

Remember, I said all these companies will lie.

They’ll come in and say, “We don’t use an autodialer.”

We have a major debt buyer that we sued over a bunch of calls who said, “We don’t use it.”

So, we said, “That’s interesting. We want to take deposition of your CEO because he allowed documents to be filed with the FCC (because it’s a publicly-traded company) bragging about all the money they’ve spent on these brand-new up-to-date dialing systems.”

At that point, then the case settled.

They’ll fight you on this and say, “You have to prove it’s an autodialer or predictive dialer.”

Just keep in mind: the more exposure to the defendant, the more likely they are to fight.

Then you have to make your own decision whether you want to do this on your own or hire a lawyer.

Does this law apply to credit card companies?

It absolutely applies to them. They are starting to recognize this, and if you apply for a credit card now, you’ll see that they’ll say something to the effect of, “You agree we can call you on any number that you have now or ever have in the future. We can text message you, etc.”

I don’t think that that’s valid. I think you have to actually give them your number.

They try to bury that in the fine print, but it absolutely applies to credit card companies.

How about my auto finance company such as Santander?

It’s the same answer. It’s kind of a classic because they’re very big, and in my opinion, they tend to be pretty ruthless.

I’ve sued them a number of times because I think they go way over the line of what’s allowed.

They’ll say, “We can call you because you’re late,” or, “You didn’t give us a home number, so we can call your cell phone.”


Auto finance companies and any other type of company using an autodialer, a computer dialer or a pre-recorded message is going to be subject to this law.

Can a mortgage company violate this TCPA by calling me?

Yes. We’ve sued Bank of America, Nationstar and all sorts of companies related to mortgages.

What if a company is calling my cell phone but for somebody else?

Here’s one we see quite a bit, particularly as companies buy and sell accounts and portfolios.

For example, Bank of America is dumping a lot of mortgages – what’s called the servicing rights.

At least in part to Green Tree and Nationstar, and now these companies are just calling like crazy.

A lot of times, the data has been corrupted and they’re calling the wrong person.

You’re getting two to three calls a day, and they want Susie Smith and your name is Joe Blow.

When you tell them, “Hey, you have the wrong number,” they say, “Oh, okay,” and they just continue to call you.

Sometimes they even say, “Look, I’m sorry. Robert, I can’t help you. You’re in the dialer. There’s nothing I can do. It’s the computer calling you, not me.”

Well, somebody told the computer to do that, and the company is responsible.

Did you give your cell phone number to this company?

If the answer is no, then they’re violating the law.

It’s always a good idea to tell them, but the first call is a violation.

These companies know this.

They know that if they’re going to do these autodial calls/computer dial calls, they need to be very careful.

But they like to just blast out these calls and say, “You can’t hold me responsible.”

They are being held responsible now.

What if an identity thief gives someone my cell number?

What if somebody steals your identity and they put down your cell phone number, or they keep their name but put your cell phone number down?

The question is did you give your cell phone number to the hospital, the doctor, the credit card company, or whoever it may be?

If you did, then they may have permission.

However, if you did not, then they do not have permission.

If I’m a victim of identity theft, and I realize this car loan or credit card company has an account in my name, and I call them and tell them and they say, “We’re going to investigate this. What’s your cell phone number?” and you give it to them, can they then blow up your phone with hundreds of calls?

It’s amazing to me that these companies argue, “Yes. You have us your cell phone. I know you’re a victim of identity theft. I know you called in to get us to stop calling you or to get this off your credit report, but if you give us your cell phone number, we’re going to blow up your phone without mercy.”

However, I disagree with that, and I think we’re correct in that we’re not going to victimize people twice and say, “Because you’re a victim of identity and you happen to call in, we can now blow up your phone.”

That’s just absurd to me.

Who are some of the companies that you have sued under the TCPA?

I can’t list them all.

I just listed some of the bigger ones that you may be familiar with: Bank of America, Chase, and NCO. Really, all of these companies, except for the very small places, use autodialers.

If you’re getting calls, then document those calls because you may notice, “Every morning at 8:23am, I get a call from Chase, and that’s been going on for six weeks.”

If that’s a human being doing it, don’t you think at some point he’d have to go to the bathroom at 8:23?

How could he possibly be that precise over that period of time?

It’s a safe assumption, at least to start off, to say, “This is probably a computer dial call.” Then we investigate it more.

These are some of the companies that we’ve sued, and maybe a little Mom and Pop shop somewhere.

That may not be, but most people are not paying employees to dial numbers if employees talk on the phone for a living.

Contact Us.

If you have any questions about the TCPA, feel free to get in touch with us.

We represent consumers all over the state of Alabama.

You can reach us by phone at 1-205-879-2447. 

Or, you can fill out a contact form and we will get in touch with you soon. 

Thanks for reading, and have a great day!

-John G. Watts

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