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Robocall and TCPA Laws in 2019

By on October 9, 2019

The Federal Trade Commission & Federal Communications Commission both regulate phone calls on a federal level. Some states in the US have their own rules regarding robocalling, with some states having banned robocalling and robotexting in most cases. Robocalling laws are meant to protect consumers from unwanted marketing calls. However, they apply to telemarketing which means phone calls or messages with a financial motive i.e., to persuade someone to make and investment, buy goods/services, etc.

The TCPA or Telephone Consumer Protection Act is the main robocalling law in use. The law stipulates when robocalling or sending robtexts is legal/illegal.

TCPA law: What does the TCPA prohibit?

1. Use of autodialers, pre-recorded or artificial voice: The TCPA prohibits calls that aren’t made by a live person. Automatic telephone dialing systems, pre-recorded voices, or artificial voices should not be used to make calls to mobile phones. This law includes all calls, including non-telemarketing calls made by charitable institutions among other nonprofit organizations for political or advocacy reasons. 

2. Calls without FCC disclaimer requirements: All robocalls to both cell phones and landlines must meet disclaimer requirements that include; prior identification of the entity initiating the call using official name/s. The telephone number or address of the organization should also be given, and the number must be valid. Telephone numbers to autodialers and pre-recorded message players, as well as numbers that charge callers, are prohibited.  

3. Telemarketers calling numbers in the Do-Not-Call (DNC) Registry: Telemarketers aren’t supposed to make robocalls to individuals whose numbers restrict such calls.

What does the TCPA allow?

1. Non-telemarketing calls to landlines: The TCPA allows non-telemarketing calls made to landline phones even if such calls are pre-recorded or made using autodialers or an artificial voice. 

2. Robocalls with prior consent: The TCPA allows robocalling or robotexting to cell phones provided the caller has received prior express permission from the called party. 

Text spam laws

The TCPA banned spam texts in 2004. US citizens who receive spam texts (unsolicited texts/junk texts sent without prior express invitation or permission from a receiver) can take legal action against senders. Under the TCPA, unsolicited texts should have a commercial aspect in them to be deemed illegal. 

The law allows companies/businesses that have established a relationship with you to send you texts on warranty information, statements among other information deemed useful but non-commercial. 

NB: There is more to robocalling law or TCPA laws that what is discussed above. Furthermore, reporting a robocall or robotext to the FTC or FCC might not be enough. It’s worth noting that most reports help to inform future legislation or assist law enforcement in conducting investigations. As a result, robocalling or robotexting, which causes financial harm (scamming or identity theft), may not be addressed conclusively by making reports to the relevant commissions. The importance of seeking legal help from a TCPA attorney can’t, therefore, be overlooked. In case you are wondering what it takes to prove a case under TCPA law, here’s what you should know

Elements of proving a case under TCPA

To prove a case under TCPA, you must:

  • Understand the statutory definitions of different terms under TCPA law
  • Understand consent under the TCPA

1. Understanding the statutory definitions of different terms under TCPA law

To prove a case under TCPA law, you must understand how the law defines certain terms. For example, what constitutes a call made using a pre-recorded voice, autodialer, or artificial voice? Autodialers are defined as equipment capable of storing or producing phone numbers to be called via a sequential or random number generator. Autodialers are capable of dialing the numbers they store or produce without human intervention. 

The FCC made a declaratory ruling (in 2015), expanding the meaning of the term autodialer to include software or any other equipment used for “predictive dialing” timed to connect recipients with live operators. There was doubt on internet-to-phone robocalls and robotext until the FCC’s 2015 declaratory ruling. Under TCPA, the case must fall within the statutory definitions of terms like autodialers.

However, there are gray areas in statutory definitions of terms under TCPA law. For example, it’s not clear if equipment seizes to be an autodialer if there is human intervention in any way i.e., one-click dialing in the robocalling or robotexting process using software. Without a thorough understanding of statutory definitions under TCPA laws, it is challenging to argue out cases under the law. 

2. Understanding consent under the TCPA

The definition of consent under the TCPA is consistent. People who give out their phone numbers knowingly give permission or an invitation to be called. Consent to get non-telemarketing phone calls can be given in writing or orally. There are gray areas regarding consent, as seen in some outlier cases that have established that providing your phone number doesn’t qualify as express prior consent allowing robocalling. 

Past cases have determined the need for express permission to be given for receiving pre-recorded or autodialed calls to the phone number given. Although such outlier cases aren’t generally used as a basis for other court rulings, you may have a case if you haven’t given express permission to receive robotexts or robocalls. Companies that have your phone number in their database need more before they can subject you to robocalls and robotexts since phone numbers in databases can be availed to third parties, by capturing caller IDs or through apps which “harvest” numbers from contact lists. 

Scope of consent

The scope of consent can also be argued to prove a case under the TCPA. For instance, organizations with affiliates shouldn’t assume “blanket” consent. Consent to one affiliate doesn’t necessarily mean consent to other affiliates. 

Revoking consent

You can also argue based on the fact that the TCPA gives a called party the right to revoke consent anytime through reasonable means. If you have withdrawn consent (orally or in writing) in the past and you are still subjected to robocalling, the caller in question has a case to answer. 

In summary, proving a case under TCPA isn’t easy given the statutory definitions, consent, and past judgments. A good TCPA attorney is highly recommended. 

Penalties and/or damages under TCPA 

Under the TCPA, recipients of robocalls or robotexts can sue and get paid damages amounting to $500 for every unlawful call or $1,500 for every willful call or violation. Violators are subject to additional enforcement actions from regulators. The potential for penalties amounting to thousands, and even millions is high since violators of the TCPA usually commit multiple violations. US courts have awarded judgments amounting to hundreds of millions. The FCC has also sought out additional penalties for violations in many instances. 

Examples of cases and settlements under TCPA

There have been many cases and settlements under TCPA in the US. Some notable examples include:

  • Domino’s v. Alabama, Louisiana & Mississippi residents
  • Dish Network v. the United States Department of Justice
  • Wakefield v. ViSalus

1. Dominos v. Alabama, Louisiana & Mississippi residents

In 2013, Dominos agreed to pay $9.75 million to settle a class action lawsuit against Alabama, Louisiana & Mississippi residents. Domino’s was found guilty of making calls to the residents without adhering to TCPA rules. The class action lawsuit cost Dominos $6 million in monetary awards and pizza vouchers to individuals in the suit who had submitted valid claims. The multinational pizza restaurant also paid $3 million in attorney fees, among other expenses like court administration costs.

2. Dish Network v. the United States Department of Justice

In 2017, the US DOJ sued Dish Network and won. The TV provider was found guilty of making millions of phone calls though 3rd party vendors. The lawsuit resulted in $280 million in penalties and damages. Dish was also ordered to hire experts to ensure it complied with TCPA laws. 

3. Wakefield v. ViSalus

Back in 2015, Lori Wakefield filed a complaint against ViSalus, Inc. (A multilevel marketing firm) for launching a marketing campaign that involved calling individuals whose numbers were registered in the DNC registry. The multilevel company made robocalls to individuals without consent. 

Using evidence provided, Ms. Wakefield claims relating to robocalls moved to trial in 2017. After a three-day trial that started on 10th April 2019, ViSalus was found guilty of calling Ms. Wakefield four times and making another 1,850,436 phone calls to class members. The court is yet to determine the number of calls made to residential telephone lines and cell phones. Given the $500 penalty per TCPA violation, $925 million is at stake.  

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