Kohl’s Faces TCPA Lawsuit Over Unwanted Cellphone Calls

A Kohl’s customer from Tennessee filed a lawsuit against the retailer for allegedly making unwanted phone calls.

Plaintiff Damon B. says that during September and October he received repeated phone calls from Kohl’s on his cell phone.

Damon says the calls were placed using either an automatic telephone dialing system or prerecorded messages. He says he recognized the use of the automatic system by the delay that happened before the caller began to speak.

Damon says that prior to this string of unwanted cell phone calls, he had revoked any previously given consent to receive calls from Kohl’s on his cell phone. When the calls kept coming, he says in his TCPA lawsuit, he repeatedly told Kohl’s representatives to stop calling.

TCPA Protections

Damon says these calls violated the Telephone Consumer Protection Act, a federal law designed to protect consumers from such calls. The TCPA places strict limits on how businesses can contact consumers electronically, whether by phone call, fax, or text message.

Generally, the TCPA prohibits businesses from making certain types of calls to consumers without that consumer’s prior consent. For most types of telemarketing cold-calls that consent must be express and in writing.

The act has special provisions for calls made to cell phones, like those Damon received. Calls to a cell phone number made using an automated telephone dialing system or using a pre-recorded message can violate the TCPA. Exceptions exist for calls considered “emergencies,” but that exception is very narrow. (Damon notes in his TCPA lawsuit that the calls he received were not emergency calls.)

Since it can be difficult or impossible to measure the actual harm in dollars caused by unwanted cell phone calls, Congress provided for set statutory damages for each TCPA violation. For each unlawful call or text message, the consumer can be entitled to $500 in damages. If the consumer can prove that the violations were willful, the statutory damages jump to $1,500 per violation.

In July, the Federal Communications Commission published a declaratory ruling that clarifies certain details about TCPA violations. Many of those clarifications are favorable to consumers.

One topic the FCC covered was what constitutes proper revocation of consent to be called. The TCPA has always allowed consumers to revoke whatever consent they may have given, but the acceptable methods of revocation have not always been clear. The FCC now says consent can be revoked in any “reasonable manner” (even though the TCPA requires the original consent to be in writing).

Some of the FCC commissioners protested that this broad ability to revoke consent would place too much of a burden on the caller to train employees in the nuances of TCPA compliance.

But the majority of commissioners felt that the opposite situation – allowing businesses to dictate exclusive methods for consumers to revoke consent – was unacceptable.

The Kohl’s TCPA Lawsuit is Case No. 2:15-CV-00283, filed in the U.S. District Court for the Eastern District of Tennessee.

Join a Free TCPA Class Action Lawsuit Investigation

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.

Get a Free Case Evaluation Now