TCPA Class Action Lawsuits On the Rise Across the Country

By Sarah Mirando | May 22, 2013

Category: Legal News

By Amanda Antell

unwanted cell phone call In a recent TCPA lawsuit heard in a Federal Court in Wisconsin, plaintiff Heather Nelson alleged that a debt collector called her more than 1,000 times; she sued the debt collector for violating the TCPA, and was awarded $571,000 in statutory damages. Nelson’s argument was that the debt collector called her cell phone using a dialer preview mode, which is illegal under the TCPA. The court agreed and awarded her damages for these violations of the law.

In dialer preview mode, a company’s computer system uses an algorithm to predict when an agent will become available to receive the next call, based on the number of times the receiver has answered the phone and not answered the phone. In other words, with preview dialing, all an employee from the company would have to do is choose a telephone number from a computer screen, which violates the TCPA.

The TCPA (Telephone Consumer Protection Act) was enacted in 1991 to protect consumers from aggressive telemarketers and was codified as 47 U.S.C. Section 227. Section 227 provides a variety of restrictions against telemarketers, but most recent lawsuits are rising out of the prohibitions of Section 227(b)(1), in particular subsections (A), (B) and (C), which address calls or transmissions made from an automatic telephone dialing system (“ATDS”). The following summaries describe these prohibitions briefly:

Section 227(b)(1)(A)(iii): Prohibits the use of an ATDS or an artificial or prerecorded voice to make non-emergency calls without prior express of consent of the other party to a cellular phone, or other devices or service for which the called party is charged.
Similar to subsection (A), Section 227(b)(1)(B): Prohibits making non-emergency calls with an artificial or prerecorded voice to residential phone lines without prior expressed consent. FCC regulations exempt some types of calls made under this section, including calls that have nothing to do with advertisement or some commercial product, or that the other party has an established business relationship.
Section 227(b)(1)(C): Prohibits use of fax machines, computers, or other devices to send unsolicited advertisements to fax machines. Cases exempt from this rule would be if the caller and the other party an established business relationship where the fax would contain a compliant opt-out notice.

The TCPA provides people a private right of action for any violations or statutory damages that the person may suffer, in the amount of $500 for each violation and up to $1,500 for each willful violation.

As mentioned earlier, the number of private lawsuits filed under the TCPA has risen significantly, especially over the past year. Plaintiffs have alleged a broad range of conduct violations, and have filed class action lawsuits to fight back. The following points are brief summaries of recent cases, and how newer technology has given way for companies to get around the TCPA.

Texting Using ATDS: There were at least two significant proposed class action settlements of text messaging claims over the past year.

The first settlement was with Jiffy Lube International Inc., when a class action lawsuit was accused the company of violating the law with a text message promotional campaign. Plaintiffs alleged that an estimated 1.9 million class members had received spam text messages from Jiffy Lube in violation of the TCPA. After the court denied defendants’ motion to dismiss based on First Amendment rights, Jiffy Lube agreed to pay the settlement value of $47 million.
Similarly in a second case (Ellison v. Steve Madden Ltd), Steve Madden agreed to pay a $10 million class action settlement for their text message promotional campaign that sent unwanted text messages to an estimated class of 200,000 people.

ATDS and Artificial or Prerecorded Voice Calls: In Meilleur v. AT&T Inc., the defendant agreed to a pay a $4 million class action lawsuit settlement to resolve claims the company made calls using an automated dialing system and an artificial or prerecorded voice to an estimated class of 15,000 people.

As of August 2012, there has been a 54% increase of TCPA lawsuits. Additionally, the Federal Communications Commission and Federal Trade Commission have recently shown interest in implementing stronger enforcement of TCPA regulations.

If you believe that you’ve been the victim of a TCPA violation, you have legal options. Please visit the Text Message Spam Cell Phone TCPA Class Action Lawsuit Investigation. There, you can submit your claim for a free legal review and if it qualifies for legal action, a seasoned TCPA lawyer will contact you for a free, no-obligation consultation. You will be guided through the litigation process at no out-of-pocket expenses or hidden fees. The TCPA attorneys working this investigation do not get paid until you do.