Consumers receive unwanted texts and calls from companies. Overtime consumers become frustrated by the plethora of messages on their home phones, faxes or mobile devices. The intrusion can not only be harassing, but also is costly for consumers. The Telephone Consumer Protection Act (TCPA) and the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) address the underlying problems faced by many consumers.
The TCPA restricts solicitation and the use of automated telephone equipment. Unsolicited communications under the TCPA is broadly defined to include “any material advertising the commercial availability or quality of any property, good or services which is transmitted to any person without that person’s prior express invitation or permission in writing or otherwise.” The types of restricted activity include:
- To make any call using any automated telephone dialing service or prerecorded voice.
- To initiate a call to any residential telephone line using an artificial or prerecorded voice to deliver a message.
- To transmit an unsolicited advertisement through a telephone facsimile machine, computer or any other device.
- To use an automatic telephone dialing system that engages two or more telephone lines of a multi-line business.
Messages sent through an autodialer are banned by the TCPA and Federal Communication Commission’s (FCC) rules unless the consumer consented, an established relationship existed or the message was sent for emergency purposes. Prior to taking any action a consumer should determine whether they granted express written consent for all autodialed or prerecorded telemarketing calls to wireless numbers and for prerecorded calls to residential lines. Consent may be given by agreeing to terms of an agreement for purchasing a product or service.
The TCPA is an instrumental tool in providing consumers with remedial measures. Companies face penalties of $500 per illegal call or $1,500 for willfully violating the law. In addition, the consumer may seek an injunction against unsolicited company based on the circumstances of the case.
The CAN-SPAM Act supplements the TCPA by banning unwanted commercial messages sent to your mobile device. CAM-SPAM Act encompasses message that are focused on advertising or promoting a commercial product or service. However, the ban does not encapsulate “transactional or relationship” messages. A transactional message constitutes information a consumer receives about an existing account or warranty information about a purchased product. In addition, non-commercial message are not included such as a message from public official.
TCPA lawsuits are on the rise after the FCC announced TCPA enforcement is one of their top priorities for 2013. A class action lawsuit against Papa John’s Pizza alleged the company violated state and federal laws by sending consumers unsolicited advertisements through text messages about Papa John’s pizza products. Papa John’s settled the $250 million suit. Another case involved Bank of America (BofA), who settled a suit over “robocall” complaints. The class action lawsuit alleged that consumer received harassing debt collection calls to customers’ cell phones. Consumer argued that the calls were harassing and traumatic to the individual. Although BofA denies all allegations, the company settled the suit for $32 million. TPCA provides consumers with greater protection against intrusive telemarketing calls and unwanted prerecorded messages.
Gana Weinstein LLP is investigating robocalls. If you are a victim of unwanted and unsolicited robocalls or automated text messages, contact us.