The underlying facts of her lawsuit suggest an apparent willfulness with which big banks, like Capital One, continue to violate the requirements of TCPA. Nonetheless, challenges to the FCC’s 2015 Order dealing with the standards for consent and revocation, now pending in the DC Circuit Court may complicate the situation for plaintiffs in nuisance call lawsuits of the future.
Protection from illegal robocalls
The TCPA and related laws bar most autodialed or prerecorded calls, texts and faxes made without prior express consent. But many people are not aware that they have consented – the agreement may be buried in a loan document or may be inferred, in a retail situation, from an agreement to receive text messages about discounts or sales. The situation is particularly painful for consumers with wireless phones if they are charged for incoming calls.
In her complaint, Kristie Drigger alleges that (whatever agreements she had previously made, intentional or not) she explicitly revoked her consent to receive autodialer calls from Capital One in March 2016. In the year that followed, she received at least 128 collection calls. She believed that they were automatically dialed for two reasons: they were very frequent and she often had the experience of hearing “dead air” before a human voice weighed in.
If proved at trial, these facts would point to a clear violation of law.
All the traffic will bear
A quick review of bank and retailer TCPA complaints suggests that Kristie Drigger’s situation is not unique. Almost 20 years ago, the Minnesota Attorney General sued US Bancorp for selling customer account information to MemberWorks, a telemarketing company. Since then, the Minnesota Attorney General has published a fact sheet designed to protect consumers from similar abuses.
The federal situation is also very much in flux. In 2017, several courts held that a recipient of an autodialed call may not revoke consent where consent was included as a term in the underlying contract between the recipient and the company placing the calls. The FCC is now under the leadership of new Chairman, Ajit Pai. Their posture is regarded as business friendly, but it is unclear what steps the FCC may take.
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