OUR PRACTICE AREAS
TELEPHONE CONSUMER PROTECTION ACT
The Telephone Consumer Protection Act (TCPA) is a federal law that prohibits communications to consumers through the use of automatic telephone dialing systems or by artificial or prerecorded voice messages without consent. Although consumers receive these types of automated and prerecorded calls on a routine basis, very few are aware that these types of communications are unlawful and even a smaller minority are actively enforcing their rights under the TCPA. Many consumers sincerely believe that these calls are simply a part of modern day life and there is nothing that can be done. However, the TCPA is both the shield and the sword against these unwanted and frustrating communications.
Providing and Revoking Consent:
For a communication to violate the TCPA, it must be made without the prior express written consent of the consumer. This type of consent is usually received when consumers sign some type of application for services or goods and the consent is buried within the fine print of the agreement. Luckily however, consent can be easily revoked either in writing or through a verbal request. If possible, it is always best to revoke consent using a method that records the communication, such as an email or text message. If that’s not possible, the business entity can always be asked to provide a confirmation letter of the revocation.
The following communications are prohibited under the TCPA if initiated without the consent of the consumer:
Requirements for Consented Calls:
Even if a consumer provided consent to receive automated or prerecorded calls, the call must identify the caller and provide an easy option to opt-out of future communications from that entity.
The main factor determining the outcome of a TCPA case will be the type of evidence that is presented. The strongest forms of evidence include screenshots of the consumer’s cell phone history, pictures of the consumer’s caller ID and if there is an issue of consent, documented proof showing that consent was explicitly revoked.
Under the TCPA, a consumer is able to recover actual damages and statutory damages. Statutory damages provide for $500 per violation and $1,500 for any willful violation. The circumstances surrounding the calls or messages will determine whether the communication is considered willful but there are some obvious situations that would trigger the higher reward. For example, when a consumer clearly and explicitly revokes consent multiple times but nonetheless continues to be called.