Think You Have a TCPA Claim? Not So Fast.
Updated: Nov 30, 2019
There is a very powerful federal law called the Telephone Consumer Protection Act ("TCPA"). It has been on the books since 1991. This law makes it illegal for companies to make calls to you using an automated telephone dialing system ("ATDS") or a prerecorded or artificial voice without your prior consent. It also prohibits unsolicited faxes being sent to you without your prior consent.
This law is very powerful because if you can prove that the company violated the law, you can recover $500 per phone call and up to $1,500 per phone call if you can prove that the calls were made willfully. It goes without saying that this can add up in a hurry.
We have consumers who call our office from time to time who have heard about this law and think that they have a huge case because they have been receiving a lot of calls from a big company. It isn't that simple, unfortunately. To determine if you have a valid TCPA claim, we basically need to check off certain boxes.
First, you will want to find out whether the calls are coming from an auto-dialer. Sometimes this is difficult to determine with 100 percent certainty, but there are telltale signs to look for. When you answer the phone, is there a delay before someone answers the phone? Do they play music when you answer the phone, while you wait for someone to get on the phone? If so, there is a pretty good chance they are using an auto-dialer.
The next question I would ask you is whether you had ever given consent for them to call you with an auto-dialer. Nowadays, many of the contracts (loaded with confusing fine print) that the big companies use have an authorization buried in there whereby you authorize the company to call you with an auto-dialer. Many consumers do not even realize that they have agreed to this.
Here is the good news: if you are located in our part of the country, here in Florida, you can revoke that consent by telling them on the phone to stop calling you on that particular phone number. This is because of a case called Osorio v. State Farm Bank, F.S.B., issued last year. You can read this important decision here. Remember: if you had given the company prior consent to call you with an auto-dialer, you will not be entitled to recover any damages for the phone calls unless you have told them to stop. You must tell them to stop calling you.
Of course, if you think you may have a TCPA claim, it is helpful for you to keep the best call records possible. A spreadsheet with the dates and times of the calls, and the number the calls come from, is helpful. Also make special note of the date and time of the call in which you tell them to stop calling. Screenshots of the calls are even better.
If the company is calling you with an auto-dialer or a prerecorded or artificial voice, you have told them to stop, and they continue to call with an auto-dialer, you may have a TCPA claim. If so, I would be happy to talk to you. Just make sure to check off your boxes before you call.
Ryan C. Torrens, Esq.