Today, most businesses still attract consumers the old-fashioned way—by calling them. Consumer retention/solicitation studies have revealed that companies’ most successful way to win and retain customers is phone calls. That is why telemarketing is still a primary source of repeat and new consumer businesses in the United States.

With the extensive use of smartphones and the increase of text messaging as a cheap advertising tool, customers have become highly accessible to companies that seek to market their products and engage with their prospective consumers. To maintain consumer privacy despite the rapid transformation, the TCPA was enacted to curb telemarketer practices.

However, telemarketers still violate this law. As a consumer, you should know when your privacy rights have been violated and what you should do if that’s the case. At Consumer Alert Now, we are committed to informing you about your rights and what constitutes their violation. We also link consumers whose rights have been violated to experienced attorneys so that they receive justice. If you have been affected, contact us right away irrespective of where you are in the country, and we will look into your situation.

Overview of the TCPA

In 1991, Congress enacted the TCPA in regard to a rising number of complaints from consumers about debt collectors and telemarketer phone calls. This Act is primarily meant to restrict nuisance calls or automatic phone dialing systems and prerecorded or artificial voice messages regarding cellphones, text messages, unsolicited faxes, and residential phone lines. But more importantly, it’s meant to safeguard the consumer’s legal rights to privacy.

In 1992, the FCC (Federal Communications Commission) adopted guidelines for implementing the TCPA and added a requirement that organizations making phone solicitations should come up with a process to keep company-specific do-not-call registers.  In line with this requirement, the TCPA also restricts a telemarketer from calling any consumer listed in the do-not-call registry.

In 2003, the FCC reviewed the TCPA to form a federal do-not-call registry. The registry covers all telemarketers (except for a few nonprofits) and applies to both intrastate and interstate calls.

The latest amendment to the TCPA guidelines was done in 2012 by the FCC. In this amendment, the FCC required that:

  • Telemarketers have to obtain in-advance specific written consent from their consumers before they robocall them.
  • A telemarketer may no longer take advantage of a loophole concerning a formerly established business rapport to contact a consumer, and
  • A telemarketer has to provide an interactive, automated opt-out procedure during every robocall so a consumer can immediately inform the seller to stop their calling.

A robocall or automated call is a phone call made by a computer. On the contrary, a prerecorded voice message refers to a recorded human voice message, which a caller uses while contacting a consumer.

Exceptions to the TCPA include:

  • Purely informational messages or calls
  • Emergency calls
  • Phone calls for non-commercial purposes.
  • It is also allowed to utilize an autodialer to call landlines provided there’s no artificial or prerecorded voice used.
  • Commercial phone calls that don’t constitute telemarketing or include an advertisement
  • There are additional exceptions, which apply to phone calls directed to any kind of line.

What Is Considered a TCPA Violation?

The TCPA prohibits the following activities:

Calls to Mobile Phones

Under the TCPA, it is a violation to send prerecorded messages, text messages, and make automated calls to cellphones. This rule applies to all kinds of cellphones, whether they’re for personal use or business. In essence, debt collectors or telemarketers violate the law each time they send a prerecorded message, text message, or make an automated call to a customer’s mobile phone, except if the consumer formerly gave them the go-ahead to do so. In a case where the consumer had previously granted their permission, then he/she has the legal right to revoke it by informing the debt collector or telemarketer to stop messaging or calling the phone.

Phone Calls to Residential Telephone Lines

The TCPA forbids prerecorded messages for phone calls directed to residential phone lines. This prohibition only affects solicitations from sellers/telemarketers with whom a consumer doesn’t have an established business rapport. Suppose the customer has conducted business with the seller within the past one and a half years or made inquiries within three months. In this case, the TCPA presumes the consumer has established a business rapport with that seller.

Telemarketing Phone Calls to a Consumer Who Is in the Do-Not-Call Register

The TCPA also forbids any solicitation phone calls to the consumers whose phone numbers are listed in the do-not-call registry. Customers can put both their residential and cellphone lines in the do-not-call register.

According to the TCPA, debt collectors and telemarketers using auto-dialers are also prohibited from doing other things, like calling the customer after nine o’clock at night or before eight o’clock in the morning. During any phone call, the caller should also provide their name, an address or phone number via which the business entity or person can be reached, and the name of the business organization on whose behalf the phone call is being made.

How to Tell If The Call Was Made With an Autodialer

It may be challenging to know if the call you are receiving is by an autodialer. However, most courts and the FCC describe an automated phone dialing system to comprise nearly any phone dialing software.

Most systems utilized by telemarketing companies usually autodial several numbers at a go and will prompt a live individual to come to the line immediately the phone call is answered. In this case, there’ll be a delay and perhaps a click sound after picking up the phone. In case a live person comes to the line after a delay, you possibly have been contacted by an autodialer.

However, even if there’s no click or delay, the call might still be unlawful. Here, common sense is critical. In case you receive the kind of debt collector or telemarketing phone call you suspect is made to a significant group of consumers, it means the system utilized to contact you is an automated phone dialing system.

Another indication that your caller is using an autodialer is if you receive over four voicemails or calls in one day from the same caller. Should you answer any call, then what you hear is only a computerized or recording voice; it usually implies that it’s a robocall. And if you respond to a phone call but nobody speaks, that could also indicate that it’s a robocall.

Also, note that if an artificial voice or prerecorded message is utilized to call your landline, then the phone call is unlawful, regardless of the type of system used to make it.

Documenting Proof of the TCPA Violations for Purposes of a Lawsuit

If you are receiving phone calls that violate the TCPA, you may take various steps to record the violations. They include:

  • Obtain & save all the phone records plus highlighting incoming phone calls from telemarketers and debt collectors.
  • Make written documentation of the phone calls you’re receiving, particularly recording the caller’s identity, date & time of those calls, and a summary of the conversations you had with the caller if any.
  • If you’ve revoked your permission to receive phone calls, then keep a photocopy of your letter.
  • Saving all the voice messages

Examples of telemarketers that have regularly violated the TCPA include Credit Card Companies, Student Loan Providers, Payday Loan Companies, and Home Security Systems.

Class Action Lawsuits for TCPA Violations

The number of class-action lawsuits brought under the TCPA has risen substantially in recent times. This is because of several different elements, including:

  • The rapid growth of businesses marketing mobile devices
  • Rules & guidelines that make it easy for complainants to file TCPA cases
  • Increased enforcement of TCPA
  • The requirement that complainants only prove that they’ve received unsolicited calls and not that they’ve been damaged
  • A United States’ Supreme Court verdict allowing the TCPA class-action lawsuits to be filed in state and federal courts

Nearly any company that contacts its customers using any of the technologies prohibited under the TCPA is subject to a lawsuit, irrespective of jurisdiction or industry. Unsurprisingly, businesses are progressively concerned about the TCPA class action lawsuits and the dangers they pose, especially since there’s no actual cap on damages in these cases. Each fax, text, or call considered to have violated the TCPA translates to compensation, and some TCPA complainants claim millions of violations. Consequently, both private and public businesses have been compelled to pay multimillion-dollar compensation instead of risking a ruling that possibly will be many times larger.

Recent Progress in the TCPA Class Action Lawsuits Against Cannabis Business Participants

Cannabis businesses are progressively the target for class actions filed under the TCPA. Multiple suits claiming TCPA violation cases have been brought against cannabis business participants, such as marketers, and class actions continue to be filed at an increased rate.  In August 2020, a TCPA violation lawsuit was filed against a giant industry. In the same month, the federal court made a decision worth noting concerning a cannabis dealer’s request to suspend a TCPA suit against it.

During the same months also, that is, on August 12th, 2020, a customer in New York sued Curaleaf Inc. for a TCPA violation. Curaleaf Inc. markets itself as the largest cannabis business globally by revenue and the highly diversified & vertically integrated firm in the U.S. The complainant claims that in addition to other things, this company bombards customers’ cellphones with non-emergency marketing and advertising text messages with no prior explicit written consent (Brooks v. Curaleaf Inc.).

The week before filing the suit against Curaleaf Inc., a class action lawsuit had also been filed in Vermont Federal Court against a Missouri-based cannabis company known as Native Hemp for supposedly violating the TCPA (Baker v. Native Hemp Company). The Complainants accuse this company of sending unsolicited messages via an automated telephone dialing system.

These are only a few of the recent cases of increasing TCPA class actions targeting cannabis business participants. Other class-action lawsuits that have been filed in the past include:

  • Camacho v. Hydroponics Inc. brought on 6th May 2020
  • Abbink v. Good Chemistry filed on 31st March 2020
  • Dewoskin v. Desert Lake Group, LLC filed on 21st February 2020

The Telephone Consumer Protection Act has attracted the U.S Supreme Court’s attention. A case involving cannabis business in the Ninth Circuit looks into whether a court might or might not suspend TCPA lawsuit considering an expected United States Supreme Court verdict in the coming years on using automatic dialing devices in the case of Facebook Inc. v. Noah Duguid. This case could determine how The Telephone Consumer Protection Act defines automated dialing systems and, therefore, whether phone calls made by these devices are forbidden. This is especially important to cannabis companies that use automated technologies to contact consumers.

On 11th August 2020, the Northern District of California declined to stay a class action lawsuit pending a verdict in the Duguid case. The case, titled Komaiko v. Baker Technologies, was brought by Baker Technologies, a CRM & text platform used by Cannabis businesses. The Court maintained that Baker Tech hadn’t provided proof about what kind of auto-dialing device it utilizes. Therefore, the judge couldn’t determine what effect the Facebook Inc. v. Noah Duguid case would have on the case in question.

Consequently, the judge left the room for a possible stay should Baker Tech prove that their software doesn’t operate as an automated phone dialing system. This might be an essential argument to be presented in the other class-action suits involving TCPA violations where the accused requests the court to stay the case pending a ruling of the Duguid case.

Considering the increase of TCPA violation lawsuits, the cannabis marketers should note that TCPA complainants’ lawyers target them. As industries continue growing and merge, they shouldn’t overlook lawful restrictions on engaging with customers. Cannabis businesses must carefully assess any relevant internal terms and conditions applicable to how they communicate with consumers and acquire any contact details. They must also review their risk mitigation and compliance practices and policies to avoid being targeted for TCPA violation lawsuits.

Generally, businesses must seek to prevent becoming liable for TCPA violation by taking the following steps:

  • Transitioning to or maintaining a system that involves manually dialed telephone numbers without using prerecorded messages
  • Ensuring adherence with the do-not-call requests and lists
  • Obtaining permission for the kind of information in question:
  • Prior explicit written consent for any telemarketing
  • Previous express consent (for instance, for informational messages only)

Cannabis businesses engaging with customers and prospective customers must consult with outside or in-house counsel on best procedures and practices to prevent possible exposure & liability under TCPA.

Damages for Violating the TCPA

Consumers whose class action lawsuits are successful recover damages as follows:

  • Up to 500 dollars for every violation of the do-not-call registry
  • A maximum of 1,500 dollars per call if they can prove the business entity violated the TCPA willfully and knowingly.
  • A maximum of 500 dollars per call that goes against the TCPA

Civil Penalties for the TCPA Violation

On 30th December 2019, President Donald Trump signed into law the TRACED (Pallone-Thune Telephone Robocall Abuse Criminal Enforcement & Deterrence) Act. This law takes severe measures against robocallers by broadening the FCC’s authority to enforce civil punishment of a maximum of 10,000 dollars per phone call for violating federal robocall legislations intentionally. The law also increases the period within which the FCC can take disciplinary action against the businesses that willfully breach the federal statutes to up to four years. The $10,000 fine is in addition to the other punishments for the TCPA violation mentioned above.

Building an Aggressive Defense Strategy

Considering the challenging environment and the fact that rules governing the TCPA aren’t only unclear but are continually changing, it’s critical to hire lawyers who have an in-depth understanding of the laws and amendments when filing lawsuits. The lawyers should also be skilled in dealing with these cases and quickly developing an aggressive defense strategy. Several strategies may be applied in winning your case, like showing you didn’t give in-advance express consent to receive the calls or messages in question.

Telemarketing and Fraud

A lot of sales phone calls are made with the intent to defraud customers. Unscrupulous sellers even keep mooch lists and databases of consumers who are likely to become victims of fraudulent telemarketing calls.

Attorney Generals from different states have initiated several cases to address the fraudulent telemarketing issue. In 1999, the Attorney General of Minnesota, Mike Hatch, filed a lawsuit against U.S Bancorp for selling consumer account info to a telemarketing firm known as MemberWorks. The A.G alleged that apart from selling consumer contact details, U.S Bancorp also sold checking account numbers, credit card numbers, account balance info, and Social Security numbers. The bank received four million dollars and a 22% commission on all the sales done using the information. It settled this case, paid a three-million-dollar fine, and agreed to stop the act of selling consumer details to sellers.

Other reputable banks have sold customers’ info to telemarketers too. Chase Manhattan, Capital One, First U.S.A, Citibank, GE Capital, MBNA America, and Fleet Mortgage have all given their customers’ personal & confidential information to fraudulent sellers. These financial institutions gave the telemarketers the names, phone numbers, and other details about their customers. Additionally, they provided them with the capability of charging consumers’ accounts without needing to ask customers to give an account number. In one instance, a national bank processed 95,573 cancellations of membership clubs and other products that had been billed by pre-acquired account telemarketers with no consumers’ authorization.

Apart from selling fraudulent services and products, slamming is an activity often performed through telemarketing. It’s the act of switching a person’s long-distance company without their consent.

What You May Do To Stop Automated Calls

The following steps could help you avoid robocalls:

Revoking Your Consent If You Had Previously Given It

The Federal Communications Commission has established that you must offer written consent for the caller to make automated phone calls to your phone number. If you’ve given this permission previously but have now changed your mind, you have the right to send a letter revoking it. This way, the telemarketer won’t robocall you anymore.

Adding Yourself to the Federal Do-Not-Call List

You could also stop automated calls by adding your phone number to the federal do-not-call registry. This is done by calling 888-382-1222 using the number you want to register or visiting www.donotcall.gov. If you’re registering online, you have to click on the link sent in the confirmation email. The mail is sent for you to finish the process.

If you include yourself in this registry, you prevent telemarketers/sellers from calling your line, even if they’re not using prerecorded messages or auto-dialers. Callers have to stop all calls directed to you in 31 days. If you’ve included your number to the registry but continue receiving telemarketing calls after thirty-one days have elapsed, you can file a complaint to the Federal Trade Commission.

Note that the do-not-call list specifically prohibits telemarketing calls. You can still receive other phone calls that are not sales-related, such as charitable or political organizations. It also doesn’t prevent debt collectors from contacting you to collect.

Opting out of Phone Calls from Specific Callers

The FCC provides that callers give you the alternative to opt-out of receiving any future robocalls. The opt-out feature has to be announced on the automated menu when you answer the call and available for you to select throughout the phone call.

Talk to a Consumer Protection Attorney Near Me

If you have additional questions or concerns about the TCPA or want to learn more regarding bringing a class-action lawsuit against a business that has violated the Act, reach out to Consumer Alert Now right away. We will also connect you to an experienced consumer protection attorney who will help you determine if you have a valid case to join a class-action lawsuit, and if you do, fight to ensure a just outcome. Call us at 800-511-0747, and we will serve you regardless of where you reside in the United States.