TCPA Consumer Practice
Maldonado Law offers the following legal services to Consumers who have received an unwanted robocall or spam text
- Pre-lawsuit demands to violators to see if matter can be resolved before going to court
- Pre-suit investigation if class action status is appropriate for your TCPA and DNC claims
- Initiation of lawsuit for TCPA & DNC violations in federal court or Florida Circuit Courts
- Settlements of claims, either as individual class representative or as a class against the violators
- Determine if referral to the FTC better suits the violations
The TCPA violations are serious and the TCPA is an important protection available to consumers. The same is true for the DNC violations. Most marketers and telemarketers understand and observe the law, however some don’t or won’t. Some marketers and telemarketers maintain good compliance programs but experience glitches and errors that affect consumers. Some marketers and telemarketers are simply small businesses that make naïve mistakes and run afoul of the TCPA and DNC. Our firm understands the differences between all of them. We are serious about our representation. Our practice is not based upon perusing volumes or frivolous claims. Each case is different and based upon the merits of the claim and the facts. Our firm is dedicated to those claims that truly affect consumers and undermine efforts by lawful marketers and telemarketers to keep compliant with the TCPA and DNC. In order to determine if a TCPA or DNC violation has merit, it’s important that potential clients answer some basic questions and come to us with some basic information:
Are you a mobile subscriber with a Smartphone or cellular handset who:
- Has received an unwanted text without your permission?
- Has received an unwanted Robocall without your permission?
- Has received an unsolicited telemarketing call without your permission?
- Has received a call from a spoofed or blocked number only to answer to a prerecorded message with an unwanted sales offer?
- Has received a call or text from a company or business AFTER you have revoked permission to contact your through your mobile number?
- Is that number registered on the Do-Not-Call list but you still receive calls and texts trying to sell you something?
Or, are you a landline subscriber who:
- Has received an unwanted fax soliciting your business without your permission?
- Has received an unwanted sales cold call without your permission?
- Has received an unwanted collection call without your permission?
- Has received an unwanted call without your permission?
- Has received an unwanted customer service call that was in fact an up-sale without your permission or notice?
If any of these have happened, you may be entitled to statutory damages under the Federal Communications Act, and its Telephone Consumer Protection Act (TCPA) protections and rights – codified 47 U.S.C. § 227 et. seq. The TCPA applies to any business that calls or texts a consumer wireless number. It applies to telemarketing calls and texts to telephone number registered on the Do-Not-Call list. Statutory damages start at $500.00 per call or text message received to $1,500.00 per call or text for intentional violations or repeated violations. If the violations are widespread by a company allow for class actions to be initiated against the offending companies. So, you may not be alone. The statute also allows the recovery of attorney fees from the violators.
Preserving a potential TCPA or DNC Claim
Essential to pursuing a TCPA violation claim is documentation of the evidence of the call or text. The first step is to save the evidence you have of the text or call:
From your Smartphone or mobile handset:
- Save all documentation of the call or the text message received.
- Do not delete the text or voice message. Turn off any auto delete setting until call or text is fully documented.
- Make screenshot picture of the text message or the call log with any text message short code or incoming call caller ID with date and time.
From your mobile carrier:
- Request and save call/text detail records (time and origin of the incoming call) you can access online or that you can request the carrier for time period your received the calls or text. Highlight the incoming one(s) that were unauthorized to pursue a TCPA claim.
- If you use a SIM Card based mobile cellular phone, request all call detail records and text logs that you can. Make the request in writing to the carrier and send by email and regular mail.
- Save all of the voice messages from telemarketers, debt collectors, banks or others.
- If you revoked consent for the calls through email or a reply text save it and keep it with your records and reference it in your summary.
- If you are registered with the Florida or Federal Do-Not-Call list, request a copy of the date of last registration and any renewals.
From your landline, VoIP IP PBX provider, or cable company phone carrier or provider:
- Acquire and save cell phone records you can access online or can have sent by the carrier for calls and texts within the time period your received the calls or text. Highlight the incoming one(s) from banks, telemarketers, or debt collectors, including the one that cause you to pursue a TCPA claim.
- If your mobile telephone subscriber account is associated with an VoIP telephone account, a cable company, or computer softphone account, obtain all subscriber information.
From you and your records:
- Write down a summary and detail all you can about your interaction with the text or call.
- If your talked with a telemarketer or responded “Stop,” “Cancel,” or requested to be removed from receiving test messages or calls, write a detailed records of what happened including important information like a summary of the conversation with date, time, name of person you spoke, the company they represented, and any statements made about the way they got your number and their permission to contact you.
Not every call or text is a violation of the TCPA. Some basic elements of the TCPA are important to showing a violation.
Typical characteristics of a violation include:
Use of an Autodialer by the telemarketer, bank, collection agency or caller Another important aspect of a TCPA claim is that the text or call was made to your phone was made through an autodailer. This may be a physical dialer owned and operated by the contacting company, a call center working on their behalf, or be a software platform which the contacting company subscribes or uses for sending text messages or calls from a list entered or maintained by the contacting company. Manually selected numbers that are kept data based and those dialed manually may not apply under the TCPA. Signs that an unwanted call or text used an autodialer include but are not limited to:
- Text Short Codes [found at the top] of SMS message
- Text Long Codes, full telephone number, [found at the top] of SMS message
- Use of links in a SMS text message
- Use of a Pre-recorded messages, with a pause, when call is answered or message is left on voice mail
- Spoofed local numbers or Handshake/Stir warning messages from your mobile carrier associated with the called party
- Spam Call identified by your wireless carrier
- Message left on your voice mail
Call or Text was made with No Expressed Consent or Expressed Written Consent from you An important aspect of a TCPA claim is that the text or call was made to your phone without your permission or consent. One of the primary elements of a TCPA call is that the called party has not given their expressed written permission to be contacted by a call or text message, but is called or texted anyways. Expressed written consent has been interpreted by the FCC to include electronic signatures or verbally recorded consent. Under the federal E-Sign Act of 2000, clicking or marking Yes, I agree, or Accept on an online form, shrink-wrap box appearing on a mobile application, or responding consent to an application push term may be sufficient to give such consent. However clicking a box or marking an electronic signature does not alone mean that the proper expressed consent has been requested from and given by the consumer. The actual language of the consent is critical.
Fuzzy language in the expressed written consent you did give The language documenting expressed written consent must be sufficient to clearly to disclose to you that you specifically agree to receive calls or texts for marketing purposes, collections, solicitation of services or offers, or to reach you on matters related to your account such as reminders or notices. If the language is vague, buried in other terms and conditions for other purposes, or is found on an obscure clause on the company’s website, and is not prominently presented alongside the E-sign place of consent, it may be insufficient and subsequent calls and texts received afterward may be TCPA violations. The same may be true if an online or mobile account or application set-up has consent as a defaulted condition and you have no ability to decline the consent option. The language of any TCPA consent should be simple and clear in plain meaning. This is the case even if the request for consent is in a language other than English, such as Spanish.
Spoofed number or Misleading Caller ID associated with the call. A major red flag is that the party calling you is not identifying themselves in order to conceal that the nature of the call is for the purpose of encouraging the purchase, rental, investment in property, goods or services from you. Although you may not have answered the call, if the call is repetitive, check your carrier’s phone records to see if the number or call identification on their records is consistent. Otherwise, this aspect may need further investigation.
Who may be behind those nuisance calls, texts and junk faxes?
- Bill Collectors and Collection Companies
- Banks, loan, and agents of insurance companies
- Cold Call Telemarketers calling from off-shore Call Centers
- E-Commerce companies that have your information after a purchase
- Online companies or Mobile Applications soliciting new products from other information given for another purpose
- Stores, gas Stations and businesses that have affinity programs or have your information from your customer account.
- Telephone Companies using your account information of obtained illegally by Customer Proprietary Number Information
- Foreign companies set up to have called party call back to avoid the TCPA because consumer called them.
- Fraudulent Enterprises that simply wish to scam you
Review of your evidence and claims
Determining the merits and overall prospects for a lawsuit is a delicate matter that requires careful review. If you believe you may have a bona fide case for violation of the TCPA, DNC or Telephone Sales Rule, contact our office for a consultation and assemble as much evidence as possible from the above to speak thoughtfully with our attorneys about the violation and your options.
Contact Maldonado Law to schedule a confidential initial consultation about your potential TCPA claim for unsolicited call or spam text message.