Report Unwanted Calls & Texts
The Telephone Consumer Protection Act, Monetary Awards, and Scammers
The Telephone Consumer Protection Act (TCPA) is a federal law that bans certain telemarketing practices that are a nuisance and an invasion of privacy.
The TCPA allows you to punish such unlawful activity in court by forcing violators to pay the greater of your actual monetary loss or $500 for each violation. If it finds the defendant’s violation was willful, a court may award up to three times your actual monetary loss or $1,500 per violation, which is otherwise known as treble damages.
With regard to scammers, particularly those situated in foreign countries and those operating sophisticated organized crime operations – scammers pose unique problems. Identification is the primary issue. With spoofing technologies and the complications arising from dealing with foreign jurisdictions, pursuing civil litigation against bona fide scammers is not financially justifiable, unless there is a viable entity responsible for the actions of the scammers on a vicarious liability theory, which is explained below.
You are welcome to use the form above to submit your report for our review. We may reach out to you to gather additional details. Please be advised that we do not maintain or interact with any do-not-call list and we are not affiliated with any governmental entity.
Wireless Phones: Automated Calls and Text Messages
The TCPA and FCC regulations prohibit making any non-emergency call using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice to a wireless telephone number without prior express consent. This typically applies to text messages as well. If this automated communication includes or introduces an advertisement or constitutes telemarketing, the law applies a higher threshold for consent, requiring express written consent to avoid TCPA liability. If the communication was an attempt to collect a debt, consent will need to be thoroughly evaluated.
Help Your Case: Keep a Log of Important Information
It is recommended that you keep a log of the calls and text messages received from a party suspected of violating the TCPA – particularly if you’ve received many of them. In your log, you may include such item as:
- The date and time of each call;
- Phone number associated with each call;
- The purpose of the call and any details you can write down about the statements the caller made during each interaction;
- Whether you heard an artificial or prerecorded voice;
- Note any delay, pause, or sound at the beginning of the phone call;
- Whether you requested to be placed on a do-not-call list; and,
- Whether the caller gave you any method to opt out of receiving future communications.
Do-Not-Call List, Residential Phone Numbers
The TCPA imposes liability on those engaging in telephone solicitations with residential telephone subscribers who have registered their names on the federal do not call registry. For this particular claim, as opposed to the TCPA claim arising from automated calling to a wireless phone, you need to have received more than one (1) call in a twelve (12) month period from the offending party.
The term “telephone solicitation” in the TCPA means “a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person’s prior express invitation or permission, (B) to any person with whom the caller has an established business relationship, or (C) by a tax exempt nonprofit organization.”
If the communication was an attempt to collect a debt, it is possible that you may have granted consent, and as such, the question of consent would need to be evaluated. Further, the FCC has clarified that “non-telemarketing, informational calls, such as those by or on behalf of tax-exempt non-profit organizations, calls for political purposes, and calls for other noncommercial purposes, including those that deliver purely informational messages such as school closings” are exempt from this law.
As stated before, parties found liable for such violations are liable to pay you the greater of your actual monetary loss or $500 for each violation. If it finds the defendant’s violation was willful, a court may award up to three times your actual monetary loss or $1,500 per violation, which is otherwise known as treble damages.
Vicarious Liability: Companies May Be Liable For The Misdeeds of Third-Party Telemarketers
An entity may be vicariously liable for TCPA violations under a broad range of agency principles, including not only formal agency, but also principles of apparent authority and ratification. This is naturally a fact intensive analysis. Apparent authority may be supported by evidence that:
- The vendor/seller allows the outside sales entity access to information and systems that normally would be within the vendor/seller’s exclusive control, including: access to detailed information regarding the nature and pricing of the seller’s products and services or to the seller’s customer information;
- The ability by the outside sales entity or debt collector to enter consumer information into the vendor/seller’s sales or customer systems, as well as the authority to use the vendor/seller’s trade name, trademark and service mark may also be relevant;
- It may also be persuasive that the vendor/seller approved, wrote or reviewed the outside entity’s telemarketing or collection scripts; and,
- The vendor/seller knew (or reasonably should have known) that the telemarketer/ collection agent was violating the TCPA on the vendor/ seller’s behalf and the vendor/seller failed to take effective steps within its power to force the telemarketer/ collection agent to cease that conduct.