CLAIMS UNDER THE DO NOT CALL LIST

Couple receiving bad news over phone

People who receive unwanted calls may be entitled to compensation and relief.  A recent case discussed their right.

The TCPA provides in pertinent part:

(b) Restrictions on use of automated telephone equipment
(1) Prohibitions. It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice—
(i) to any emergency telephone line . . . ;
(ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or
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(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call . . . .
47 U.S.C. § 227(b)(1) (emphasis added).

The TCPA provides a private right of action for violation of 47 U.S.C. § 227(b)(1):

(3) Private right of action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State—
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.

If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.  47 U.S.C. § 227(b)(3).

The section relating to residential telephone subscribers is 47 U.S.C. § 227(c) and governs calls to the National Do-Not-Call Registry. See 47 U.S.C. § 227(c)(1) (authorizing the Federal Communications Commission (“FCC”) to initiate rulemaking concerning the privacy rights of residential telephone subscribers). Section 227(c)(5) provides for a private right of action for § 227(c) violations where a person has received more than one telephone call “by or on behalf of” the same entity in violation of § 227(c). 47 U.S.C. § 227(c)(5).

To prevent evasion of the TCPA’s call prohibitions, the FCC has treated calls made by a third party on behalf of a company as if the company itself made the call, whether in relation to collection or solicitation calls subject to § 227(b) or in rules governing solicitation calls addressed in § 227(c). With respect to collection calls under § 227(b)(1)(A)(iii) made to wireless numbers, the FCC explained:

To ensure that creditors and debt collectors call only those consumers who have consented to receive autodialed and prerecorded message calls, we conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent. The creditors are in the best position to have records kept in the usual course of business showing such consent, such as purchase agreements, sales slips, and credit applications. . . . [A] creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.
In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991: Request of ACA Int’l for Clarification and Declaratory Ruling, 23 FCC Rcd. 559, 564 ¶ 10 (2008) (footnotes omitted). In its ruling, the FCC noted that the prohibitions on the use of autodialers in § 227(b)(1)(A)(iii) apply regardless of the content of the call, as opposed to the separate restrictions of § 227(c) on “telephone solicitations” that do not apply to calls that are solely for the purpose of collecting a debt. 23 FCC Rcd. at 565 ¶ 11.

As a remedial consumer protection statute, Gager v. Dell Financial Services, LLC, 727 F.3d 265, 271 (3d Cir. 2013), the TCPA’s language is to be construed “broadly to effect its purpose.” Lesher v. Law Offices of Mitchell N. Kay, P.C., 650 F.3d 993, 997 (3d Cir. 2011) (applying principal in context of Fair Debt Collection Practices Act “FDCPA” case). If proposed interpretations of the TCPA are equally plausible, the scales tip in favor of the consumer. Leyse v. Bank of America Nat. Ass’n, 804 F.3d 316, 327 (3d Cir. 2015).

Considering the TCPA, the Supreme Court has explained:

Voluminous consumer complaints about abuses of telephone technology—for example, computerized calls to private homes—prompted Congress to pass the Telephone Consumer Protection Act of 1991 (TCPA or Act), 47 U.S.C. § 227. . . . The Act bans certain practices invasive of privacy and directs the Federal Communications Commission (FCC or Commission) to prescribe implementing regulations.  Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 370-71 (2012). The Court of Appeals for the Third Circuit observed that “Congress passed the TCPA to protect individual consumers from receiving intrusive and unwanted calls.” Gager, 727 F.3d at 268 (citations omitted).

The legislative history of the TCPA refers to prerecorded calls as “an intrusive in invasion of privacy” and indicates that the TCPA is aimed at protecting individuals’ privacy rights while balancing legitimate telemarketing practices.  Debt collection calls as well as telemarking calls are within the TCPA’s purview.  Forrest v. Genpact Services, LLC, 962 F. Supp. 2d 734, 736 (M.D. Pa. 2013) (holding plaintiff stated a claim under both the TCPA and the FDCPA for excessive debt collection calls).

For purposes of the TCPA, it does not matter that P.S. was the intended recipient of the calls. In Leyse, the Court of Appeals for the Third Circuit held that the individual who answers the robocall6 has standing to sue. 804 F.3d at 327. The aggrieved persons under the TCPA’s provisions include the actual recipient of the telephone call, 804 F.3d at 325-26, because “[i]t is the actual recipient, intended or not, who suffers the nuisance.

Klein v. Commerce Energy, Inc. (W.D. Pa., 2017).

CALL FOR A FREE CONSULTATION ON YOUR RIGHTS UNDER THE DO NOT CALL LAW

Man in home office on telephone using computer smiling

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