New Ruling May Affect TCPA Lawsuits

A new ruling was recently determined which will have an affect on the many TCPA (Telephone Consumer Protection Act) lawsuits that have been filed. The 11th U.S. Circuit Court of Appeals ruled that plaintiffs in TCPA lawsuits now must prove that the defendant was aware that their action was a TCPA violation. They must prove willful intent in order to receive a treble damage award.

This new ruling came out of Lary v. Trinity Physician Financial & Insurance Service. The plaintiff claimed that that the defendant used an automatic telephone dialing system to send him a faxed advertisement through an emergency telephone line. This action is a TCPA violation because a company cannot use automatic telephone dialing systems to contact a user without their permission.

The plaintiff sought $1,500 for each TCPA violation. Awards range between $500 and $1,500 per violation in most TCPA lawsuits. However, the plaintiff could not prove that the defendant was aware that the fax advertisement was sent to an emergency line or that it was unsolicited. Therefore, the plaintiff was granted a total of $1,000 instead of the initially proposed $3,000.

TCPA Violations

Many individuals have filed TCPA lawsuits after receiving an unsolicited text message or unsolicited phone call from a company. The TCPA states that an individual must provide express consent before receiving communication from an advertiser or other party. Furthermore, the use of an automatic telephone dialing system is expressly prohibited unless consent is given. An automatic telephone dialing system is anything that can create and dial numbers without human interference.

These kinds of communications (also known as robocalls) can be usually be determined by whether or not there is a long pause before a human speaks (meaning that an automatic telephone dialing system made the original call) or if there is the sound of a phone hanging up before a person speaks.

Other kinds of TCPA violations include unsolicited text messages. This includes receiving unwanted, sometimes unprompted text messages from companies without the ability the cancel the text communication despite texting “STOP” or following other ceasing directions.

TCPA lawsuits may be filed for the following violations:

• Placing a robocall (using an automated dialing machine and/or pre-recorded message)
• Sending unsolicited text messages unwanted cell phone calls
• Not providing an option to opt out of the calls/texts
• Calling numbers listed on the National Do Not Call Registry or on company-specific “do-not-call” lists
• Sending unsolicited advertisements to any fax machine — both businesses and residences — without the recipient’s prior express invitation or permission (i.e., “junk faxes”)

The 11th Circuit’s new ruling may have an affect on ongoing or future TCPA lawsuits. Many plaintiffs have been successful in receiving awards for the inconvenience and annoyances of unsolicited phone calls or text messages.

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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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