Robocalling, spam text messages, and spam faxes are common advertising and debt collection practices. But these practices are highly annoying, invade our privacy, shift corporations’ cost of doing business onto the public, impose direct costs onto persons who are tricked into buying goods or services they do not want, and illegal. Spam wastes our time and invades our privacy. Some people’s text inboxes become so overloaded that they miss legitimate messages. Consumers pay for their home and cell phones. Pre-paid cell phone plans, often used by low-income individuals, typically charge fees for each text message received. Advertisers are therefore using consumers to subsidize their advertising costs. Spam faxes likewise shift printing and data transmission costs onto the recipients and cause legitimate, wanted faxes to be missed. Spam texts are like a trespass in that unwanted information takes up space on our phones. Consumers are unwittingly exposed to phishing and hacking schemes because one click can open a data “backdoor” in our cell phones. Clicking on a link in a spam text message may enroll a person in a service with recurring billing that is nearly impossible to get rid of—a practice called “cramming.”
Stopping Robocalls – Federal Fines on Spammers
Even members of Congress cannot avoid the ever-growing onslaught of unwanted communications. For that reason, in 1991, Congress passed the Telephone Consumer Protection Act (TCPA), a federal law with strong bipartisan support signed by President George H.W. Bush. Put simply, the TCPA prohibits unsolicited communications except for emergency purposes or from some non-profit entities. More, specifically:
- Home phones: it is illegal to use an artificial or prerecorded voice to deliver a message without the prior express consent of the called person.
- Cell phones: it is illegal to make any call or text message using an automated dialer or an artificial or prerecorded voice without the prior express consent of the called person.
- Faxes: it is illegal to send an unsolicited advertisement unless there is a prior established business relationship and the recipient voluntarily provided the fax number.
The TCPA imposes a penalty of $500 per call—not per person called, but per call. If someone received 10 unsolicited calls or text messages, that person would be entitled to $5,000. If the violation was willful—the company knew its conduct was illegal—the per call penalty is tripled to $1,500. The TCPA also established the widely popular Do Not Call Registry, with which over 220 million Americans have listed their phone numbers. Moreover, the TCPA prohibits calls before 8:00 a.m. and after 9:00 p.m.
Despite the steep penalties imposed by a law that has remained essentially unchanged for nearly 25 years and the public’s overwhelming rejection of invasive robocalls and spam texting, they are still commonplace. According to the New York Times, U.S. consumers receive approximately 4.5 billion spam texts per year. It is currently estimated that over one billion text messages are sent each day, and the AARP reports that 45 million of those may be spam text messages. In response, the Federal Communications Commission (FCC) has brought enforcement actions against repeat violators and private lawsuits have increased. In 2009, plaintiffs filed only 29 TCPA lawsuits, and that number grew to over 2,300 lawsuits in 2014. Some of the civil settlements have been massive, such as a $32 million settlement by Bank of America in September 2013. Yet it seems that spam texting is still profitable and corporations are willing to take the risk of being caught. In July 2014, Capital One and three affiliated debt collectors settled a TCPA lawsuit for $75 million.
Corporations Lobby to Protect Spam Text Messages
Because private lawsuits are such an effective way of curbing abusive corporate practices, corporations are fighting back by lobbying the FCC to implement new, lenient regulations. Corporations do not want to be responsible for mistakenly autodialing reassigned phone numbers, even though companies can use available technology to determine whether phone numbers have been transferred. For example, a company called Neustar asserts that it can determine 95% of reassigned numbers. Strict autodialing regulations are critical because an autodialer can send a text message to every conceivable telephone number in existence. Corporations are also seeking exceptions for healthcare-related calls that are not for solicitation. Even though these calls are not for sales purposes, there are serious privacy concerns because an unintended call recipient could obtain sensitive, private information about the intended recipient. Multiple consumer rights groups agree, including the National Consumer Law Center and the National Association of Consumer Advocates. They sent letters to the FCC in January 2015 and April 2015 to counter the industry push for lighter regulations.
Importantly, lawsuits are not intended to prevent consumers from receiving wanted information. There is no penalty if a company sends a text to someone who has consented to receiving text advertising from that company. The goal of TCPA lawsuits is to prevent companies from abusing the direct access that telephones—cell phones in particular—provide into consumers’ private lives. TCPA lawsuits are typically brought as class actions because, for an individual consumer, the expense of litigating against a large corporation typically far outweighs the potential recovery.
Filing a Lawsuit for Robocalls and Spam Text Messages
Weitz & Luxenberg is investigating potential claims of TCPA violations. If you have received any of the following, please contact us at 800-476-6070:
- an unsolicited or unwanted phone call, text message, or advertising fax;
- phone calls in spite of being on the Do Not Call Registry; or
- phone calls before 8:00 a.m. or after 9:00 p.m.
If you have received these unwanted communications, you may be entitled to monetary compensation and we may be able to help you.