Washington, DCThere is little doubt that illegal robocalls remain a blight on the communications horizon as Americans continue to have their rights for privacy and solitude violated by a seemingly unending parade of unwanted calls to private voice lines, fax lines and cell phones. This, in spite of recent changes to the Telephone Consumer Protection Act (TCPA) requiring purveyors of such calls to obtain a consumer’s written permission to receive.
In other words, it’s no longer okay to establish permission based on a business or preexisting relationship of some kind between the robocaller and consumer. In addition to rules already established governing times of day and such, a robocaller must be able to provide proof of a recipient’s permission that such calls and faxes are welcome, or at the very least, acceptable rather than unwanted and obtrusive. Failing that, a robocaller can leave himself open to telemarketer lawsuits.
It should be noted that telemarketing, done properly and according to mandated rules and guidelines, can actually prove useful to the consumer and serve as an important marketing tool for businesses and retailers. However, bad apples that ignore the rules help create a situation that becomes toxic for all players.
This point, among others, was made May 18 of this year by US Senator John Thune (R-SD), as the Chair of the Senate Committee on Commerce, Science and Transportation convened a full committee hearing on Capitol Hill. Dubbed “The Telephone Consumer Protection Act at 25: Effects on Consumers and Business,” the session acknowledged that while many historic practices known to be disruptive and abusive have been reduced or eliminated, others capitalizing on new technology have in many ways muted that progress. And while the TCPA is seen as being effective, legislators and pundits agreed that it may be showing its age and that further updates might be required not only to bring the TCPA fully into the twenty-first century, but also to ensure it is not harming those who play by the rules.
Attorneys conversant with debt collector harassment and telemarketer lawsuits agree that recent and forthcoming rule updates to the TCPA should make it easier for consumers to file a nuisance call lawsuit over illegal robocalls - especially since written permission is required. Few consumers would provide this willingly, unless they are duped into doing so and thus, further room for litigation.
Consumers and businesses that do not wish to receive fax blasts, for example, have claimed damages and compensation for the loss of paper, toner and ultimately the life of their fax printer. Consumers with limited data plans, and facing charges for unwanted calls and text messages to their mobile phones, also claim damages.
In fact, one of the few exceptions to the TCPA’s prohibition on autodialed and prerecorded calls to cell phones was pushed through Congress as part of the Bipartisan Budget Act of 2015: to allow such calls when placed to collect a debt owed to, or guaranteed by, the United States Government.
But even that amendment is expected to go away soon, as there has been a lack of universal support for the idea, and legislation has been introduced in the current term of Congress to roll back that amendment - although progress has been slow.
Be that as it may, the legal community suspects that heightened rules to require written consent to be robocalled, messaged or faxed will result in a continued upward spike of telemarketer lawsuits.
For the plaintiff, a nuisance call lawsuit can be lucrative, given the private right of action and statutory damages of $500 for each violation and up to $1,500 for each willful violation.
Extrapolate that across dozens or even hundreds of illegal robocalls and text messages within an identified time frame, and one can imagine the financial windfall, not to mention the justice that is allowed to prevail.
Beyond that, purveyors of illegal telemarketing calls also face a potential roadblock in acquiring liability insurance to protect them from such actions, given that insurers, and for the most part the courts, appear to agree that illegal robocalls and the willful disregard for do-not-call lists, time-of-day calls and other guidelines inherent with the TCPA - including the requirement for written permission - precludes insurance coverage in most cases.
To that end, the robocaller takes a chance that an insurer will balk and refuse to release liability insurance funds if a robocall, SMS message or fax blast is deemed unwanted and illegal.
Similarly, the legal purveyors of robocalls and fax blasts who play by the book and follow all the rules must be diligent in digesting language in a liability insurance policy to determine the presence of any language, however small, that may trump a payout.
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