I know you’re receiving a ton of calls from spam or potential spam callers because 58.5 BILLION of these calls were made to those of us in the U.S. in 2019! Since we’ve just completed the Presidential Election in the U.S., if you’re in the States, you’ve likely received a number of political text messages as well. Are these calls and text messages lawful?
Let’s take a look at the Telephone Consumer Protection Act (TCPA), which prohibits all autodialed or prerecorded calls or text messages to your cell phone, and 2) places limits on unsolicited prerecorded telemarketing calls made to your landline home telephone.
TCPA REQUIREMENTS
The TCPA was enacted by Congress in 1991 to address the volume of unwanted phone calls made and faxes and text messages sent to the public and makes it unlawful for any person within the U.S. to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. So, any call or text to your cell by anyone in the U.S. using an auto-dialer or artificial pre-recorded message, including those made by debt collectors, those posing as Social Security Administration or the IRS officials, etc. is in violation of the law.
In addition, in October 2013, the Federal Communications Commission (FCC) further restricted telemarketer’s unwanted calls by requiring any telephone call or text message that includes an advertisement or constitutes telemarketing using an automatic telephone dialing system (ATDS or auto-dialer) or artificial or prerecorded voice, be made only with the prior express written consent of the called party. Those attempting to sell you something, bombarding you with messages to buy medical or car insurance, or solar panels from them, are in violation of the law if they do not have your prior express, written consent to do so.
HOLD VIOLATORS ACCOUNTABLE AND GET PAID!
Under the TCPA, those who call, text or fax you without prior consent can be sued for their violations. How much could a court award you? Each communication is worth $500 to you; that’s right, violators can be held accountable to the tune of $500 for each call, text message, or fax to you, if made without your prior consent. And, if the communication was “willful and knowing” – meaning not an error/misdial – each communication can be worth up to $1500. The keys for you will be to: 1) find the courage to sue. Yes, my dear Sisters, if you’re afraid to exercise your rights under the law, which violators count on, then there’s no payday for you and you reinforce the behavior of these bad actors. I spoke to a lawyer a couple of years ago when we were vetting lawyers for this website project. He said that Black folks were less likely to file lawsuits due to fear, and if the matter relates to debt collection, shame and guilt also prevented us from taking that action. We’re all told to pay our bills and pay them on time, otherwise we’re labeled a deadbeat. We at BWBC would like to help you step out of that fear and into your POWER! Whether or not you actually owe a debt, if your rights are violated, you must have the courage to take action. Look at it this way…if you owe someone money and don’t pay them, then they break into your home and steal your valuables, did they violate you? Of course, and you’d be correct in filing a criminal charge against them, whether you owed them the money or not. Correct?
Is a lawsuit always necessary? No, we found that only 3 out of 10 cases we dealt with resulted in a lawsuit. In 7 out of 10 cases we just sent them what’s called a Demand Letter and that was sufficient. There’s a template of the demand letter we used in the resources section of our website: https://blackwomenbuildingcredit.org
Once you get over the fear, and trust and believe we all had to do it, you need to do the following: 1) determine who called/texted/faxed you, 2) whether you gave them prior consent (and if attempting to sell you a product or service, express written consent that they can prove), 3) save any records of their calls or texts, and 4) very importantly, determine whether they contacted you via an auto-dialer. You’ll need some help with this. We’re here to support that process!
Political Robocalls and Texts – Are they Unlawful?
As text messages generally go to mobile phones, robotexts require the called party’s prior express consent. However, political text messages can be sent without the intended recipient’s prior consent if the message’s sender does not use autodialing technology to send such texts and instead manually dials them. In sum, if those calls/texts were sent without the use of an autodialer, then they were NOT in violation of the TCPA.