While most all of us know the feeling of having our dinner interrupted by an unwanted call from a telemarketer, few folks know these calls can be illegal. Most folks are not aware that under the Telephone Consumer Protection Act (TCPA), a federal law passed in 1991 in response to consumers’ complaints about unsolicited telemarketing calls, some of these calls are illegal.
Federal Communications Commission (FCC) regulations require anyone making a telephone solicitation call to your home provide his or her name, the name of the person or entity on whose behalf the call is being made, and a telephone number or address at which that person or entity can be contacted. The rules also prohibit telephone solicitations to your home before 8 a.m. or after 9 p.m., and require telemarketers to comply with any do-not-call request you make directly to the caller during a solicitation call. Telemarketers covered by the National Do-Not-Call Registry have 31 days from the date you register your telephone number to stop calling you.
A telephone solicitation, as defined by the TCPA, is a telephone call that acts as an advertisement. The term does not include calls placed with your express prior permission, calls by or on behalf of a tax-exempt non-profit organization, or calls from a person or organization with which you have an established business relationship. Many solicitations fall within the “business relationship” exception.
The TCPA may be enforced by an action to recover monetary damages or to receive $500 per violation (whichever is greater). In some cases, a consumer may recover treble damages. Although the TCPA is a federal cause of action, claims may be filed in state court. In appropriate circumstances, a consumer’s claim may be brought as a class action on behalf of a class of similarly situated consumers.
Recently, in the case Gager v. Dell Financial Services a federal appellate court held that prior express consent to be called can be revoked at any time. The Plaintiff, Ms. Gager, went through the credit process to buy computer equipment from Dell. During this process, she provided her cell phone number on the credit application. Ms. Gager defaulted on her payments and Dell used an automated calling system to make repeated calls to her telephone line. She requested that Dell stop calling. Even after the request, Dell continued to call with the automated system – 40 times during a three-week period!
The United States Court of Appeals for the Third Circuit concluded that the TCPA affords Ms. Gager the right to revoke prior express consent to be contacted on her cell phone by automated device, and there is no time limitation on that right. While the TCPA does not contain express language giving a consumer the right to revoke consent, the Third Circuit reasoned that Congress passed the TCPA to protect consumers from intrusive and unwanted calls. The lack of express language regarding revocation of consent does not mean that no such right exists.
If you believe you have a claim under the TCPA, or you need additional information on the subject, contact Archie Grubb or Andrew Brashier, lawyers in our Consumer Fraud Section, at 800-898-2034 or by email at Archie.Grubb@beasleyallen.com or Andrew.Brashier@beasleyallen.com.
Source: Bloomberg Law
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