- Jared Hartman, Esq.
- Posted on July 22, 2015
Commissioner Jessica Rosenworcel: “I detest robo-calls. We receive thousands of complaints a month about robo-calls, and our friends across town at the Federal Trade Commission receive tens of thousands more.”
“We applaud the FCC for upholding the essential protections in the Telephone Consumer Protection Act, a key consumer law,” said National Consumer Law Center attorney Margot Saunders. “The industry petitions [requests from companies to protect their interests over consumers’] would have exposed consumers to a tsunami of unwanted robocalls and texts to their cell phones.”
“We applaud the FCC for holding the line to keep the plague of unwanted robocalls from becoming even worse,” added Susan Grant, director of Consumer Protection and Privacy at Consumer Federation of America.
The TCPA (Telephone Consumer Protection Act, at 47 U.S.C. 227) is a statute that prohibits, among other things, unwanted telephone calls with automatic telephone dialing systems, robot messages, and/or pre-recorded voice messages without consent and without emergency purposes, as well as junk faxes and telemarketers calling people who are registered on the “Do Not Call List”. See our page titled “Phone Calls (TCPA Video)” for more detailed information on the statute.
By statute, the FCC has authority to issue rules that interpret and apply the statute itself. The courts are bound to follow the FCC rulings as if they were the statute themselves. Over the years, there has been much heavily-contested litigation over many of the grey areas within the statute and FCC rulings themselves. However, on July 10, 2015, the FCC released its newest ruling and order that clarifies a lot of these grey areas. Many of the rulings are very beneficial to consumers who wish to put a stop to the unwanted harassment that companies engage in.
Consent must be provided by the current subscriber or regular user of the phone number:
“The new user of a reassigned phone number shouldn’t have to put up with being abused by callers for the old user of the phone number,” said FCC Chairman Tom Wheeler.
One of the hotly-contested issues over the years has occurred when a company intends to call one person who had previously given consent to the company for TCPA purposes, but the company inadvertently calls the wrong person who has since received the first person’s phone number. Courts throughout the country have issued differing rulings, with some courts ruling that the company has no liability when it intends to call a person who had previously given consent while other courts have ruled that the person who is the current subscriber is the only person who can consent to be called upon the phone number at issue. The FCC has issued its ruling in favor of the consumers on this issue.
One of the hotly-contested issues over the years has occurred when a company intends to call one person who had previously given consent to the company for TCPA purposes, but the company inadvertently calls the wrong person who has since received the first person’s phone number. Courts throughout the country have issued differing rulings, with some courts ruling that the company has no liability when it intends to call a person who had previously given consent while other courts have ruled that the person who is the current subscriber is the only person who can consent to be called upon the phone number at issue. The FCC has issued its ruling in favor of the consumers on this issue.
This requirement of consent also applies to the person who is the primary user of the phone number but is not the subscriber on paper. For instance, if the wife regularly uses the phone number that was issued in her husband’s name, then the consent must have been given by the wife as the regular user of the number.
Prior express consent can be revoked via any reasonable means:
Another hotly-contested issue over the years is whether a consumer can revoke consent that had previously been given. Again, courts throughout the country have been divided—with some courts ruling that consent cannot be revoked after once having been given, other courts ruling that consent must be revoked in writing, while other courts ruling that consent can be revoked verbally at any time.
The FCC has once again ruled in favor of consumers. A consumer can revoke consent for TCPA purposes at any time and via any method that is reasonable. That means simply telling the company one time over the phone to stop calling is valid and effective to trigger TCPA liability on every call thereafter. But be careful: as soon as the company asks if they can call you back on your current number and you agree, then consent might have just been renewed. It is best to insist that all communications be in writing, and that any letter from you that requests all calls to cease be delivered via fax or certified mail for proof of delivery, so that there is never any ambiguity or question as to whether consent was revoked.
Additionally, it is important to note that the FCC has denied one company’s request that it allow the company’s to control how consent can be revoked. It is clear that no company, for TCPA purposes, can dictate how revocation can be lodged by the consumer—even if the contract that gave rise to a debt is agreed to by the consumer and that contract gives direction on exactly how the company will accept revocation, then TCPA liability still exists even if the consumer gives revocation in a manner different than how the company has dictated in its contract.
Additionally, it is important to note that the FCC has denied one company’s request that it allow the company’s to control how consent can be revoked. It is clear that no company, for TCPA purposes, can dictate how revocation can be lodged by the consumer—even if the contract that gave rise to a debt is agreed to by the consumer and that contract gives direction on exactly how the company will accept revocation, then TCPA liability still exists even if the consumer gives revocation in a manner different than how the company has dictated in its contract.
An automatic telephone dialing system is one that has the capacity to act as an auto-dialer, even if not used for that purpose:
The TCPA prohibits calls from being placed with an “automatic telephone dialing system” (also known as an ATDS) to a cell phone, when there is no consent or emergency purpose. Note that these types of calls do not trigger liability when the call is placed to a landline….only calls to a landline with robot messages and/or pre-recorded voice messages trigger TCPA liability.
There has been heavy litigation over the years as to what triggers liability under this prong of the TCPA. Many companies use machines that have the capability to act as an ATDS, but claim that an agent manually-dialed the number at the time of calling the consumer. It is now unequivocally clear that the FCC has ruled that such calls are still in violation of the TCPA. An ATDS is now unquestionably defined as dialing equipment that generally has the capacity to store or produce and then dial random or sequential numbers even if it is not presently used for that purpose. Also a “predictive dialer” meets the definition of an ATDS, as it is equipment with the capacity to store or produce and then dial random or sequential numbers, even though the dialer predicts when a sales agent will be available to be subsequently dialed by the equipment to then connect with the consumer who answered the initial call by the dialer.
As it always has, the TCPA provides victims of such unwanted calls a minimum of $500.00 per call as strict liability, and possibly $1,500.00 per call for willful violations. If you or a loved one are fed up with the abusive calls lodged by companies on a daily basis, do not hesitate to contact us for a free, confidential consultation to discuss your rights.