What is the Telephone Consumer Protection Act?

The Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) is a federal statute that was enacted in 1991 to address concerns relating to telephone solicitations. Congress passed the TCPA in 1991 in direct response to “[v]oluminous consumer complaints about abuses of telephone technology—for example, computerized calls dispatched to private homes.” The TCPA has been amended since its enactment, to include the Junk Fax Protection Act of 2005 and the Truth in Caller ID Act of 2009. However, for the most part, the original statute has not been amended.

The TCPA regulates calls or transmissions made using an automatic telephone dialing system (“ATDS”), as well as certain artificial or prerecorded voice calls. Unless you have given a prior written consent for telemarketing calls or provided your number to a creditor, you have the right not to receive the following:

• Pre-recorded voice calls on your cell phone or another mobile device or calls made with an automatic telephone dialing system;

• Text messages from ATDS;

• Pre-recorded voice calls that are non-emergency to your residential phone line;

• Faxes from a debt collector; and

• The right to revoke consent and to request any calls to your cell phone to stop.

If a company has violated the TCPA in any of the ways mentioned above, the TCPA gives consumers the right to file a private lawsuit against the company. Consumers can seek the following relief under the TCPA: (i) injunctive relief; (ii) actual damages or $500 for each violation of the Act (whichever is greater); or (iii) both injunctive relief and damages. 47 U.S.C. § 227(b)(3).

Additionally, the TCPA provides that a court, “in its discretion,” may award treble damages if the defendant “willfully or knowingly” violated the statute. A treble damages award allows a plaintiff to receive statutory damages of $1,500 for each TCPA violation rather than $500.What constitutes a “willful and knowing” violation of the TCPA depends on the court in which the action is filed. Notably, some courts hold that a defendant must know that its actions violate the TCPA. While other courts hold that a plaintiff need only show that the defendant willfully or knowingly sent the unsolicited fax, or made the prerecorded call, concluding that knowledge of the law is unnecessary.

If you have received unsolicited faxes, telemarketing calls, or prerecorded or autodialed calls, you may be able to bring a suit against the caller if the caller is found to be in violation of the TCPA. To aid your case, try to collect the following information: records of phone calls and voicemails from callers; a written record of the date and times of the calls, as well as the caller’s identity and a summary of any conversation you had; and a copy of any letters you may have sent to callers revoking consent for them to make automated calls.

Brendan A. Sweeney, Esq., The Florida Debt Warrior, of Sweeney Law, P.A., fights for consumer justice, one case at a time. If you have received unsolicited faxes, telemarketing calls, or prerecorded or autodialed calls then please contact Sweeney Law, P.A. to immediately to protect your rights.