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Court Rules Manually Dialed Telephone Calls Violate TCPA
By Jessica Tyner
The Telephone Consumer Protection Act (TCPA) protects people by making automated calls, texts and faxes illegal. Most people have received a “Please hold for a representative” call, but oftentimes these calls are legal since the person signed up for services. For example, if a person has agreed to receive calls from their mobile phone carrier, those automated calls are legal. However, if a person has not agreed in writing to receive calls, texts, or faxes, that’s a TCPA violation.
However, a recent ruling in Wisconsin may change the landscape of TCPA violation definitions for good.
In Nelson vs. Santander Consumer USA, a judge has ruled that sometimes, a manually dialed call may violate TCPA law. During the trial, Heather Nelson claimed that Santander — an auto finance company — called her over 1,000 times and left over 100 voicemails in just one year. The company was trying to collect a debt she owed, but the judge awarded Nelson nearly $575,000 in damages. How will this impact future TCPA class action lawsuits?
Details of the Santander TCPA Lawsuit
Santander had actual people on the other end of the calls to Nelson, but they used an Aspect telephone system, which is software that routes calls. Aspect lets users either choose an automated setting or a manual setting (called preview mode), however the manual setting lets the caller press one number instead of the usual 10. Both automated and manual dialing were used by Santander, and the company tried to hide behind the fact that Nelson couldn’t know which methods were used each time to call her.
This is the first time preview mode was part of a TCPA lawsuit. There’s no mention of preview dialing in TCPA rules, but the court decided that it doesn’t really matter how many times Santander used preview vs. automated. What matters is that the option to manually or automatically dial people was there, and Santander admitted to using both features. The definition of automated calls via TCPA is a call that’s made without human intervention.
The TCPA Takeaway Lesson
Thanks to Nelson, companies that use preview mode are now violating TCPA regulations. Nelson also wasn’t the subscriber of the phone number (it was her husband), but that’s also no longer a defense since Santander reached who they were trying to: Heather Nelson. Nelson’s case concluded in May 2013, and she’s changed the landscape of TCPA lawsuits for good.
TCPA has to be somewhat liquid given the constantly changing technology. TCPA was established in 1991, well before smartphones and tablets. As technology evolves, the law will have to keep up. Fortunately, TCPA lawsuits often depend on the intent and human interaction rather than getting caught up in unrelated details.
Have You Received Sales or Debt Collection Calls to Your Cell Phone?
If you’ve received sales or debt collection calls you didn’t sign up for, it’s possible you have a TCPA legal claim. There are numerous class action lawsuits picking up steam, like the Steve Madden text campaign.
Do you think you may have a TCPA class action lawsuit case? Find out more at the Text Message Spam, Cell Phone Call TCPA Class Action Lawsuit Settlement Investigation. Submit your information, and an attorney will contact you to discuss your complimentary TCPA claim review if you qualify.
Updated June 3rd, 2013
All class action and lawsuit news updates are listed in the Lawsuit News section of Top Class Actions
