Discover Faces TCPA Lawsuit Over Unwanted Phone Calls

Hundreds of unwanted phone calls from Discover Financial Services could mean hundreds of thousands of dollars for a Maryland plaintiff.

Plaintiff Keri D. claims she started receiving phone calls on her mobile phone from Discover in 2014 as part of their attempt to collect a debt. Based on the “frequency, number, nature and character” of these calls, Keri believes Discover placed them using an automatic telephone dialing system.

In January 2015, Keri told Discover to stop calling her, and she also revoked any consent for the company to use an automatic telephone dialing system to call her. Nevertheless, the calls kept coming, Keri claims. From February through April 2015, Discover called her at least 284 times, continuing to use their automatic telephone dialing system to do so, an alleged TCPA violation. 

The Telephone Consumer Protection Act

Keri argues that Discover’s phone calls violate the federal Telephone Consumer Protection Act. The TCPA was passed in 1991 to protect consumers against unwanted and obnoxious telemarketing. It imposes many different restrictions on how businesses may contact consumers, whether by telemarketing calls for marketing, automatically dialed calls, (or “robocalls”), prerecorded calls, faxes, and now text messages.

The TCPA prohibits businesses from using an automatic telephone dialing system to make phone calls to certain destination phone numbers, including those associated with cellular phones – calls like the ones Keri describes in her TCPA lawsuit.

Businesses can get excused from that requirement if the person they’re calling has given prior consent. In October 2013, the FCC began requiring the consumer’s consent to be express and in writing before the business would be allowed to make autodialer calls, prerecorded calls, or text messages to the consumer’s wireless phone number. This new rule eliminated a prior exception for businesses who had a prior business relationship with the party they were calling.

According to even more recent June 2015 FCC rules, consumers who have given that prior express written consent may now revoke it in any reasonable way at any time. The revocation does not have to be in writing; one FCC commissioner commented that even verbally telling a payment clerk at a store is an effective revocation of consent.

In cases where a business inadvertently calls a mobile number that has been reassigned, attempting to reach a prior customer who had consented to robocalls, the FCC will allow one such phone call to occur without enforcement. After that, however, the business is expected to update its records and to make no further unconsented robocalls to that number.

The TCPA also provides for statutory damage awards for each violation of the TCPA. The plaintiff does not have to prove harm occurred or how much that harm was worth, as in ordinary civil lawsuits; a plaintiff like Keri need only show that a TCPA violation occurred. For each such violation, the defendant can be on the hook for at least $500 or as much as $1,500 if the plaintiff can prove the violation was knowing or willful.

Keri’s TCPA lawsuit seeks damages of $500 for each negligent violation of the Act and $1,500 for each knowing or willful violation, plus an award to cover her costs of the litigation.

The TCPA Lawsuit is Case No. 1:15-cv-02322-WMN, in the U.S. District Court for the District of Maryland.

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If you were contacted on your cell phone by a company via an unsolicited text message (text spam) or prerecorded voice message (robocall), you may be eligible for compensation under the Telephone Consumer Protection Act.

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