JUNK TEXTS, PHONE CALLS & FAXES

Annoyed by junk messages on your phone or fax machine? It is illegal under federal law to send unsolicited “junk” faxes, text messages, and telephone calls in many situations. If you received one of these junk messages you could be entitled to up to $1,500 per message you received.

Junk FaxThe federal Telephone Consumer Protection Act (TCPA) prohibits anyone from sending a fax to your fax machine unless they have already had a business relationship with you. Junk faxes waste your paper and ink. You may be surprised to learn that many businesses still advertise this way, since fax machines seem like a thing of the past. Some people only receive faxes when it’s a junk ad. You are entitled not just to the wasted paper and toner but also at least $500 per fax.

The TCPA also forbids most mass calls and text messages to cell phones when the recipient has not given prior written consent, or has withdrawn previous consent.  Also, most advertising calls to landlines using prerecorded or automated voices are forbidden without prior express written consent. If this has happened to you, you may be entitled to $500 per phone call.

But it is not just about the money—the laws that give you the right to recover money from companies that send you junk messages are designed to stop these companies from engaging in this behavior. That is why it is up to consumers like you to stand up and hire an attorney to take these purveyors of junk ads to court. You can stand up for other consumers to prevent this abusive and illegal marketing by filing a class action lawsuit.

Keane Law LLC is experienced in  lawsuits involving the TCPA. Our team is well-versed in the intricacies of this complex area of the law. Give us a call today for a free consultation regarding your potential TCPA lawsuit.

What is the TCPA?

The Telephone Consumer Protection Act, passed in 1991, protects consumers against unwanted telephone solicitors such as telemarketers and robocalls, as well as junk texts and faxes. The TCPA limits the use of the automatic dialing systems, prerecorded voice messages, SMS text messages, and faxes used by companies without the recipient’s consent. If you have received an automated call, fax, or text message without providing explicit consent to the company, you may have a claim.

Who does the TCPA protect?

The TCPA protects against receiving unwanted phone calls, faxes, or text messages without prior consent. All advertisers must also present an “opt out” option either on the first page of the fax or early on in the message, phone or text. There are specific requirements that a company must follow when including an opt out option as well. Some requirements include offering a domestic toll free number or allowing the consumer to quickly indicate via dialing a number the desire to opt out of future contact from the business. Thus, if a business continues to contact the consumer after the consumer previously opted out, then they are in violation of the TCPA.

What does the TCPA do?

The TCPA

  • Prohibits unsolicited advertisement faxes without an existing business relationship.
  • Prohibits all advertising faxes that do not have the proper opt-out notice.
  • Bans telemarketers from contacting residents before 8 a.m. or after 9 p.m. local time.
  • Requires companies to refrain from making contact with a number that is on the National Do Not Call List.
  • Bans telemarketing calls that use an artificial recording or voice without prior written consent.
  • Forbids the use of auto-dialers to call cellphones or to send text messages to cell phones without prior written consent.
  • Requires companies to provide a toll free callback number so that recipients can register in the Do-Not-Call Registry.
  • Provides that telemarketers offer an “opt-out” option.
  • If a company has violated the TCPA, a recipient may sue up to $500 for each violation.
  • If a company knowingly violated the TCPA, a recipient can sue up to $1,500 for each violation.

Which calls to cellphones are illegal?

The TCPA bans all mass calls to cellular telephones unless:

  • The call was an emergency call; or
  • The call was made without the use of an auto-dialer or prerecorded or automated voices; or
  • The call is made in regards to health care; or
  • The call was made with the intention to collect a debt to or guaranteed by the United States; or
  • The call was made by a nonprofit organization; or
  • The recipient had previously given written consent to the caller.

Which junk text messages are illegal?

The TCPA bans all mass text messages sent to cellular telephones unless:

  • The text was an emergency text; or
  • The text was made without the use of an auto-dialer or prerecorded or automated voices; or
  • The text is made in regards to health care; or
  • The text was made with the intention to collect a debt to or guaranteed by the United States; or
  • The text was made by a nonprofit organization; or
  • The recipient had previously given written consent to the sender.

Which telemarketing calls to landlines are illegal?

The TCPA bans all advertising calls to landlines unless:

  • The call was an emergency call; or
  • The call was made without prerecorded or automated voices; or
  • The call is made in regards to health care; or
  • The call was made with the intention to collect a debt to or guaranteed by the United States; or
  • The call was made by a nonprofit organization; or
  • The called party had previously given express written consent to the caller.

Which faxes are illegal?

The TCPA bans all advertising faxes (facsimiles) sent to fax machines unless:

  • The fax has a proper opt-out notice; and
  • The sender got the fax number from the recipient or from a public source; and
  • The sender has an existing business relationship with the recipient.

In order to be legal, the fax must include an opt-out notice. The opt-out notice, at minimum, must:

  • Be on the first page of the fax; and
  • Be clear and conspicuous; and
  • Inform the recipient how to opt out of future faxes; and
  • Inform the recipient that the sender is required by law to comply with an opt-out request within 30 days; and
  • Include a domestic contact telephone number for opt-out requests; and
  • Include a facsimile machine number for opt-out requests; and
  • If both of the two above required numbers are not toll-free, an additional free way to opt-out, like a website or email; and
  • Inform the recipient that in the recipient’s opt-out request, the recipient must include their own fax number; and
  • Inform the recipient that in their opt-out request will not be valid if the recipient later grants permission to the sender to send faxes, or if they later request a fax from the sender.

Why do I keep getting calls/faxes/emails?

Even after requesting to “opt-out” of the phone calls, faxes, or texts, the sender may continue advertising. A company’s failure to respect a recipient’s request is illegal. Often time companies obtain this data from consumers without their knowledge or consent. Even though this law was passed in 1991, companies still violate it. Advertisement often remains a priority for these companies and they will continue to violate the TCPA until you hold them accountable.

What defenses might advertisers use in TCPA cases?

Companies might allege that they have an existing business relationship with the recipient. As of October 16, 2013, this defense no longer works for most telemarketing TCPA claims. The only place this defense still may apply is in circumstance when the call was outside the allowable times or if the individual is on the federal Do-Not-Call-List.

This is because, for calls made during the forbidden time period, or for recipients on the Do-Not-Call list, the TCPA regulates against “telephone solicitation.”  When the recipient has an established business relationship with the sender, this is by definition not “telephone solicitation.”

An established business relationship is when the recipient made a transaction or purchase from the company within the previous eighteen months or made an inquiry about an application or product with the previous three months to receive the telemarketing call. The established business relationship may be broken, however, by initiating a do-not-call request.

Faxes apply a different “established business relationship” rule. An established business relationship is a defense in fax cases. But the advertiser must still provide a detailed “opt-out” notification on the first page of the fax. Failure to do this violates the TCPA for fax communication.

Another defense that a company may use in telephone and text message cases is that the recipient provided express written consent to receive the telemarketing messages. Consent must be clearly disclosed to the recipient so there is knowledge of the agreement.

A company may also dispute the claims on the basis that no auto-dialers were used to make the call or text. This defense only works where no pre-recorded or artificial voice is used, and the message was received by a cell phone. However, the sender must prove that the technology they used to send the messages did not have the ability to generate and either store or dial random numbers. This is unlikely to succeed, as practically every telemarketing device is considered an autodialer, and subject to the TCPA.

In Spokeo, Inc. v. Robbins, a lawsuit filed under the Fair Credit Reporting Act for the company’s misrepresentation of the defendant’s personal information, the Supreme Court of the United States ruled that, in all types of cases, a plaintiff must show actual damage to have standing to bring a claim. Simply pointing to a statute that provides for $500 in damages for every violation is not enough.

In most TCPA cases, this is not an issue. In junk fax cases, for example, plaintiffs are damaged because their ink and toner is used up. Similarly, phone call and text message recipients are typically damaged because they have increased phone bills or because their time is wasted.

What can you do about it?

Contact an experienced TCPA attorney to handle the confusing litigation process involved in recovering damages in these cases. Often times if you are receiving unsolicited calls or faxes from companies without giving your consent, there are many others in your same situation. You then become collectively known as a class during a class action lawsuit. Contact Keane Law LLC for a free consultation to determine what the best legal route may be.

What have been the results of previous TCPA cases?

TCPA class action cases can result in large verdicts, because each recipient, by law, is entitled to at least $500 for each message they receive.  For example, Capital One Financial Corp. agreed to a settlement of $75,455,098.74 after several class action lawsuits were filed against them in December 2012. Capital One allegedly violated the TCPA by contacting their consumers on their cellular telephones using automatic telephone dialing systems and prerecorded messages. Recipients of these calls claim they had never given prior consent as the TCPA requires.

In Steven L. Markos et al. v. Wells Fargo Bank, N.A., the defendant recently agreed to a settlement of $16,319,000, after facing a class action suit for the company’s violation of the TCPA. The plaintiffs allege that Wells Fargo made unsolicited calls to consumers’ cellular telephones using a robocaller. Wells Fargo made debt collection calls and texts with an automatic dialing system and artificial messages for Home Equity Loans and Residential Mortgage Loans without receiving prior express consent from customers.

In a class action suit against Interline Brands Inc., the company has agreed to settle for $40,000,000 after violating the TCPA when they faxed over 1,500 advertisements. The company failed to receive prior written consent from consumers and also failed to follow the regulations requiring an opt-out option for the advertising faxes.

Who has a claim?

If you have received at least one text message, or more than one phone call within a 12-month period by the same company, and the call/text violates any of the regulations established in the TCPA, you may have a claim. Even if you are not on the National Do-Not-Call Registry, there are often still other TCPA violations that have occurred if the call used an automated or prerecorded message.

Almost all advertising faxes from companies are illegal. Most fax advertisers, even if they only send faxes to entities with whom they have an existing business relationship, still fail to include a sufficient opt-out notice.

If you have previously requested to opt-out of receiving automated calls or faxes, and yet the messages continued, your rights have been violated. If you have received an unwarranted advertising fax, call, or test message, contact us immediately.

What type of compensation can I expect?

Compensation will vary case to case. According to the TCPA, recipients are entitled to $500 per violation and up to $1,500 if the company knowingly made these violations. Depending on the types of violations and the extent of the people affected, companies have been choosing to settle, sometimes in the millions.  These settlements are then divided up among all the class members.  Sometimes, those who serve as class representative earn a modest additional fee.

Why choose Keane Law LLC?

Keane Law LLC has experienced attorneys who will ensure that these companies are held accountable. The Telephone Consumer Protection Act was established to protect you from companies taking advantage of you and harassing you with advertising messages. At Keane Law LLC, every fax and unwanted phone call from these companies matter. Companies should not be allowed to continue to abuse their power and ignore the law.