Do You Have A Lawsuit Based On Calls To Your Cell Phone Or Residential Land Line?

Interviewer: I am sure some people reading this will ask, “Do I have a claim or not?” How do you determine if someone has a valid claim?

Andrew Campbell: I primarily deal with violations to cell phones because that is the easiest type of violation to prove.  The first questions you have to ask is: Who is calling me? Is it a telemarketer?  Is it someone trying to sell me something?  Is it one group, or is it someone else? Is it a debt collection agency?  Is it another type of company?

Again, those are the first questions you have to ask. If it is a creditor or a debt collection agency, the questions you have to answer are: Did you give them prior express consent?  Did you provide that particular cell phone number on the application for credit?  If you did, you gave them permission.

You can always opt out if you write a letter and send it certified mail; and then get the green card return receipt. Tell them. “Look, you are calling me on my cell phone; using an auto dialer, prerecorded, or computer-generated message.” They all use those auto dialers. They have to operate that way.

Interviewer: Can they try to snake their way out and say they are using live representatives?

Andrew Campbell: They can say they are not using an auto dialer.

But the definition of an auto dialer is as follows: equipment which has the capacity to store or produce telephone numbers to be called using a random or sequential number generator; and to dial such numbers.

To simplify, it is really equipment that has the CAPACITY to dial numbers without human intervention.  The key word there is capacity.

The reason they framed it that way was they did not want a company to be able to just flip a switch to go from auto dialer to non-auto dialer. Then, the company could say, “We had the switch the other way.  It was not an auto dialed call.” Then it is too easy to simply flip the switch to not show liability. So the law just said, “Look, if that machine has the capacity to do it then it is illegal.”

In fact, there is something interesting to note here. If you paid attention to the last presidential election, you may have noticed that there was a divergence in the polls.  Some polls were showing that one candidate was doing particularly well and the other candidate was not. Polls were incorrect because they did not poll cell phone users.

Why didn’t they poll cell phone users?  Because the pollsters were all equipped with automated telephone dialing equipment and they did not want to violate the TCPA. Really, it came down to laziness because all they had to do was pick up the phone to call and punch in numbers with their fingers.  Polling companies did not want to do that so they simply made a good guess by calling just a few people.

Calling manually is just a phone call it is not prohibited.  That is perfectly acceptable for a collection agency to do, with or without your permission. The problem comes when you get equipment that has the capacity to dial without human intervention.

If the polling companies had simply manually dialed the calls and properly sampled cell phone users, they would have seen a different set of data coming out.

Interviewer: So the trouble does not come with one phone call, obviously.  Calls have to be repeated, correct?

Andrew Campbell: If it is one phone call, you still have a violation if it is a call to a cell phone.  Under the residential land line provisions, it has to be more than one call.  You do not really have a violation until there is a second call.

The first call is a “gimme.”  You get a call from a telemarketer on your land line, and you answer it and it is a prerecorded call.  You wait until they get on and say, “Do not call me anymore, okay?  Just put me on your do not call list.” Then you hang up.

If they call you back again with a prerecorded message, that is a violation.  Now you have two violations.  You cannot take action until the second call.

Interviewer: How many people take action though on one or two calls? Is that pretty rare?

Andrew Campbell: It is very rare. Nobody knows about this law and that is the first problem.  I typically will help anyone out who I can help. However, I typically do not want to take cases unless there has been at least five or six calls. That is just because the damages might be too small to economically pursue. The real problem is that most people just do not know their rights.

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