Telephone Consumer Protection Act ("TCPA")
The Telephone Consumer Protection Act ("TCPA") was passed by
the United States Congress in 1991 to protect consumer privacy from invasion
via unsolicited, electronic means. The TCPA is codified as 47 U.S.C. Section
227. More specifically, the TCPA restricts telephone solicitations (i.e.,
telemarketing) and the use of automated telephone equipment (i.e., automatic
telephone dialing systems, or ATDS, and predictive telephone dialing systems,
or PTDS) from placing or making telephone calls to consumers' cellular
telephones. The TCPA limits the use of these automatic dialing systems,
as well as the use of artificial or prerecorded voice messages, SMS text
messages, and fax machines, in certain circumstances.
As a client of LeavenLaw, the TCPA applies in most circumstances where
a creditor, mortgage servicer or debt collector is calling you in an attempt
to collect a debt that you owe. In such case, however, the creditor, mortgage
servicer or debt collector is limited in how they can call you, if they
can call you at all.
As was discussed at your initial consultation, once you notify a creditor,
mortgage servicer or debt collector that you have hired the attorneys
of LeavenLaw to represent you with regard to your debt and provide them
with our contact information, they cannot call or write you in an attempt
to collect the debt. Instead, they must call or write us in their debt
collection attempts. Generally, the federal Fair Debt Collection Practices
Act and the Florida Consumer Collection Practices Act restrict such creditor's,
mortgage servicer's or debt collector's ability to contact you.
And since they cannot call you in an attempt to collect the debt once
they know you have hired an attorney to represent you with regard to your
debts (e.g., debt settlement, bankruptcy, etc.) They certainly cannot
harass you by repeatedly placing automatically-dialed telephone calls
to your cellular telephone in an attempt to collect the debt.
If you are receiving calls from a creditor, mortgage servicer or debt collector
after you have notified them you are represented by an attorney with regard
to the debt and have provided them with our contact information,
you could be entitled to $500.00 per call placed to your cellular telephone after such notification.
A "robo" dialed called is essentially a call placed not by a
human being, but instead by technology. It is either automatically or
mindlessly placed with the hopes that calling enough times will help a
creditor or debt collector get through to a consumer. Alternatively, a
predictive dialer uses intelligence (i.e., past indicators) to predict
the best times to likely contact a consumer in the future and dials his
or her numbers going forward based on that information.
The TCPA prohibits (in certain circumstances) using such "automatic
telephone dialing systems" or "predictive telephone dialing
systems" to place calls to a consumer's cellular telephone. To
use a predictive or automatic telephone dialing system to place such calls,
the company making such calls must have the consumer's "prior
express consent." The reason? Automatically and mindlessly making
calls in this way has a greater likelihood of invading someone's privacy
and causing such person harassment, inconvenience and therefore damage.
So once you have notified your creditors of representation, if you keep
getting debt collection calls, what next?
How can you tell if you are receiving an automatically-dialed telephone call?
Unfortunately, there is no notification that you are receiving a call from
a creditor or debt collector using a predictive or automatic telephone
dialing system. Instead, you must analyze the calls to determine if they
are using an automatic or predictive telephone dialing system. Look for
the following occurrences to make such determination:
- There is a pause after you answer the call before a live person comes on the line;
- The is a silence after you answer prior to a click and then background
noise and a live voice;
- There is a pre-recorded message that greets you, asking you to hold or
make certain selections; or
- The call comes in from the same telephone number at the exact same time
If you experience or witness any of the above during debt collection calls
received from creditors, mortgage servicers or debt collectors when attempting
to collect a debt that you owe, note on the LDB&M Communications Log
the date and time of the call, the telephone number from whom the call
is placed, and which of the above indicators were present, pointing to
the use of a predictive or automatic telephone dialing system.
Your attention to detail could be worth thousands of dollars to you; help
us help you.
Pre-Recorded Voice mail Messages
Every once in a while, a creditor, mortgage servicer or debt collector
will make it easy for you and will actually leave for you a pre-recorded
voice mail message on your answering machine or cellular telephone. If
this happens, do not delete the message. Save it and contact an attorney
or paralegal in the LeavenLaw Consumer Law Department. We will make arrangements
to save the message and preserve it for use in your case.
Pre-recorded voice mail messages typically can be identified by looking
for one or more of the following characteristics:
- Robotic, monotone voices;
- Messages that REPEAT themselves during the course of the message;
- Messages left at different times but that have EXACTLY the same content; or
- Messages that direct you to PRESS a key (i.e., Press '1') to move forward.
If you have debt collection voice mails that have any of the above characteristics,
please save them and contact us. We will use them to help build your case
and end the harassment.
Spam Text / SMS Messages
In the smart-phone era, marketers and their affiliates use text messages
to market their products and services and well as solicit new subscribers
or customers. Many times, these marketers and their affiliates will have
text message "campaigns" that are set up and sent out to consumers
all across the United States, if not the world. If you have not expressly
requested this service, the unwanted or unrequested text message (i.e.,
Spam text) could be the basis for a violation of the TCPA and could be
worth $500.00 per text to you.
Additionally, if you did sign up for a text message service, you do have
the right to terminate or end the service. Generally, this can be accomplished
by "opting out" of the service via a response text of "STOP"
or you may call the company's customer service number and request
to be removed from their list. If you have signed up for a text message
service and have since ended the program, each continued text could again
be worth $500.00 per text.
If you have received text or SMS messages to your cellular telephone that
you did not request or you continue to receive text or SMS messages to
your cell phone after terminating your subscription, please save the text,
take notes around its receipt, and call the LeavenLaw Consumer Law Department.
We will look forward to assisting you with your rights under the TCPA.