After receiving repeated phone calls on my cell phone in the last few weeks from a British Columbia, Canada number, I started doing a little research on robocalls on cell phones. These annoying phone calls cost you time, money and energy and I knew they are and should be illegal.
In truth, they are. Autodialed calls and robocalls can violate the Telephone Consumer Protection Act (TCPA). The TCPA provides wide protection against robocalls, calls using automatic dialers, and automated messages. For the most part, the TCPA comes into play when debt collectors make collection calls to consumer cell phones. If a debt collector makes impermissible robocalls to a consumer’s cell phone, the debt collector is liable for $500 per call. If it can be proven that the calls are willful, the damages are $1,500 per call.
It does not matter whether the caller is attempting to collect a valid debt, although it is much more annoying when the autodialer and robocalls are coming to the wrong person. The litigation regarding these calls include hundreds of phone calls made to someone’s cell phone after his roommate listed the number as an emergency contact number, phone calls to someone’s cell phone looking for the previous owner of that phone number, and repeated phone calls from a computer to someone’s phone number.
The most difficult question in this litigation is whether the caller has your permission to call your phone. This is the trickiest part to proving a TCPA violation – whether there was consent to call a consumer’s cellphone. In 2008, the FCC determined that there must be prior written consent in order to call a consumer’s cellphone. In that same order, the FCC also explained that the creditor bears the burden of establishing consent, as they are in the best position to prove that.
More recently, a Federal Court of Appeals refined that definition, holding that consent is only given if the consumer provided their cellphone number at the time of the credit application. While there is some dissent among the circuits on this issue, there is still precedence that disallows these type of calls. In addition, the application must relate to the debt that is being collected on. In other words, if you did not list your cellphone on your original credit card application, you may not have consented.
Oftentimes, lack of consent is easy to prove because the consumer either didn’t own a cell phone or had a different cell phone number when they entered into the credit agreement or opened the account.
How can you tell if you are a victim of these illegal phone calls? Here are some things to ask yourself:
- Do you receive more four a calls a day on your cellphone from a debt collector?
- Have you answered a call and nobody is there but then there is an attempt to connect you to a live person?
- Have you received voicemails from a debt collector with a prerecorded message?
- Have you received calls or voicemails that includes a computerized voice?
If you have been a victim of robocalls, it is important to act now. Earlier this month, industry lobbyists asked the Federal Communications Commission to exempt banks and debt collectors from rules that largely bar computer-generated cellphone calls and texts to wrong numbers or without a recipient’s permission. The banks and debt collectors have one goal: to be shielded from liability, specifically lawsuits.
Even though the lobbyists admit that the industry has not been inundated with suits, they contend that the possibility threatens to raise costs and chill incentives to ensure customers receive alerts about credit card fraud, identity theft or other important information. While some members of the Senate are fighting to protect the rights of consumers to be free from these annoying and harassing robocalls, no one knows how the legislation will end up.
If you think you are receiving robocalls, contact a consumer rights attorney. The lawyers at Jinks, Crow & Dickson handle these type of cases or you can contact the Alabama State Bar referral service at www.alabar.org. An experienced lawyer can help you figure out if you are receiving robocalls, what your rights are, and what to do next.