Technology has certainly provided many benefits for modern living. But one area where the harm caused by technology has outweighed its good is in automated dialing.
Just about everyone has at some point received unwanted auto-dialed calls to their cell phone. The autodialed calls are often referred to as “robocalls.” These robocalls interrupt our lives. They can come in the middle of the night and wake us up. They can come when we are driving and distract us. They can come during work and cause us to lose focus. They can come when we are spending time with friends and family and can disclose personal information.
The good news is that there is a strong consumer protection law that can help you put an end to those unwanted calls and texts and even recover money in certain circumstances.
To combat these unwanted robocalls Congress passed the Telephone Consumer Privacy Act (“TCPA”), 47 U.S.C. §227. The TCPA was aimed at protecting consumers from the contact barrage of unwanted robocalls to cell phones. The TCPA has also been construed to prohibit text messages.
The TCPA, 47 U.S.C. § 227(b)(1)(A)(iii), prohibits any person, absent the prior express consent of a telephone-call recipient, from “mak[ing] any call … using an automatic telephone dialing system … to any telephone number assigned to a paging service [or] cellular telephone service.” In plain English, it is illegal for a company to make unwanted calls to your cell phone if the call is made with an Automatic Telephone Dialing System (ATDS).
The same statute also prohibits such calls if they are made with a prerecorded voice. This is the textbook definition of a robocall as the caller on the other end of the line is not a live person.
Some of the most common entities that place calls with an autodialer include banks calling their customers, debt collectors calling debtors to collect payments, telemarketers calling to sell their product, gyms calling to get customers to join, and mortgage servicers calling to remind homeowners to make payments. Just about any industry, you can imagine has some companies using autodialers to reach its customers.
Our Chula Vista & San Diego, CA TCPA Robocalls Law Firm has helped clients who have received autodialed calls from Navient, a student loan servicer. We have also helped clients receiving calls from Credit One, a credit card company.
The first key to determining if you have a viable case is to see if the calls are being placed by an ATDS. Under 47 USC §Sec. 227(a) an autodialer is defined as equipment which has the capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.
One way to tell if the call was placed by an autodialer is to listen when you answer the phone. If there is a pause before the call is connected to a live agent that is a clue an ATDS was used. If you hear a series of beeps after answering it may also indicate the call was placed by an ATDS.
Recent case-law has clarified what constitutes an autodialer. In the Ninth Circuit Court of Appeals, which is the Federal Court that has jurisdiction over California, the Court provided guidance as to what constitutes an autodialer. Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018). In Marks, the Ninth Circuit held that “the statutory definition of ATDS includes a device that stores telephone numbers to be called.” Id. at 1043.
Therefore, if you are receiving calls from a company that is storing your number in a database there is a good chance it is from an ATDS. Thus, many banks, debt collectors, and mortgage servicers are using an ATDS. Following the Marks’s decision, a district court in Nevada further clarified the definition of an ATDS. The court focused on the system’s ability to dial calls from a stored list of phone numbers. Singer v. Las Vegas Athletic Clubs, 376 F.Supp.3d 1062 (D. Nev. 2019). The fact that the system could not generate numbers on its own did not mean that it was not an ATDS. Id. at 1072.
So if your cell phone is receiving calls from unknown numbers multiple times a day from banks, debt collectors, car finance companies, credit unions, mortgage companies, cable companies, medical providers, or gyms you can get these calls to stop, and if they don’t you might have recourse. And the TCPA does not only regulate phone calls. It calls also be applied to unwanted text messages. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009).
The TCPA only prohibits auto-dialed calls to a cell phone without the called party’s express consent. 47 USC §227(b)(1)(A). Sometimes a call comes from a company you have never had any previous contact with. Such a company would not have your prior consent. Other times companies are calling the wrong number and reach you. This would also be an instance where a company does not have your consent.
Sometimes, however, calls are made to you when you have previously provided consent. It is important then to revoke your consent. You can do this in writing or orally over the phone. It is our recommendation to do it both ways to cover your bases. Case-law in the Ninth Circuit has found that oral revocation of consent is valid. Osorio v. State Farm Bank, FSB, 746 F.3d 1242, 1255-1256 (11th Cir. 2014) (denying summary judgment where plaintiff alleged that he twice told State Farm to “stop calling” him); Gager v. Dell Financial Services, LLC, 727 F.3d 265, 271 (3rd Cir. 2013); Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017); and Gutierrez v. Barclays Group 2011 WL 579238, *3-4 (S.D.Cal. Feb. 9, 2011).
If you have been receiving these unwanted robocalls to your cell phone you may be entitled to money damages. The company placing these illegal calls can be liable for each call in an amount of up to $1,500 per call. Some banks and debt collectors call their customers up to 10 times a day. This can add up over time.
The amount of the penalty depends on a few factors. The penalties are described in 47 U.S.C. §227(b)(3). The minimum penalty is $500 per call or text message. (47 U.S.C. §227(b)(3)(B)). But if the calls were done willfully or knowingly then that $500 penalty can be tripled to $1,500 per call or text message. (47 U.S.C. §227(b)(3)(C)).
The TCPA also permits a court to enjoin violations of the law. (47 U.S.C. §227(b)(3)(A)) This means that the judge has the power to order a company sending unwanted messages to stop.
The TCPA also provides for unwanted calls made to individuals who are registered on the do not call registry. It is recommended that all people register their phone number on the do not call registry. If you have done so and continue to receive offending calls please contact our firm.
Our Chula Vista & San Diego, CA TCPA Lawyer handles these cases across California. We have filed TCPA cases in state court, federal court, and in arbitration. If you live in California and have been receiving unwanted robocalls please contact our law firm to discuss how our Chula Vista & San Diego, CA TCPA Attorney can help.