Congress passed the Telephone Consumer Protection Act in 1991 in direct response to “[v]oluminous consumer complaints about abuses of telephone technology—for example, computerized calls dispatched to private homes.” Yet the complaints are still coming. Robocalls are very inexpensive to make. Both legitimate callers and bad actors can discharge tens of millions of robocalls over the course of a day at a fraction of a penny per call.
The TCPA law was created due to the substantial rise in volume of telemarketing calls, which came along with increased technology. Specifically, the onset of automated devices that played prerecorded sales pitches and were able to dial up to 1,000 phone numbers per hour was found to cause unwarranted intrusion upon the privacy individuals. In fact, by the end of the year 1991, seven million people were receiving automated calls each day from over 180,000 telemarketers.
Despite being on the books for over 25 years, an average of 298,000 complaints are still made to the Federal Trade Commission (“FTC”) every month in 2015 about robocalls. Indeed, some estimate that 35 percent of all calls placed in the U.S. are robocalls. The problem is escalating: FTC reported more than 3.6 million complaints about unwanted calls in 2015 – over twice as many complaints as there were in 2010 – of which almost half (1,823,897) occurred after the consumer had already requested that the company stop calling. Indeed, in the first four months of 2016, the numbers have spiked again, increasing to an average of over 440,000 a month, which will produce a yearly rate of over 5.2 million complaints.
Is the TCPA Constitutional?
Soon after the law was enacted, telemarketers began to challenge the constitutionality of the TCPA. The TCPA is indeed constitutional and protects the privacy rights of individuals. Moser v. FCC, 46 F.3d 970 (9th Cir. 1995) and Destination Ventures Ltd. v. FCC, 46 F.3d 54 (9th Cir. 1995). In the latter case, the company, Destination Ventures, used faxes to advertise their travel and seminars business prior to the TPCA law was enacted. They, along with several others businesses that used the same advertising practices, argued in court in 1993 that banning their ability to fax potential customers violated their First and Fifth Amendment rights. The FCC moved to dismiss the case and the district court magistrate judge granted the motion. Numerous other courts have held the same.
Class Action Lawsuits
Today, class action lawsuits are often initiated when a company violates the TCPA law. If the company calls one individual with an automated dialing system, the chances are, that company has called thousands of people. Unless a company has been granted permission to call each and every individual, they are violating TCPA law. When a company willfully violates the TCPA law, the victim can sue for up to $500 per violation or recover any monetary losses, whichever is greater. They can also seek an injunction.
Because the TCPA does not provide for attorney fee award even when the consumer prevails, and the statutory damages recovery is limited to $500 per impermissible call, these cases are best filed as class actions unless an individual has a high volume of illegal calls.
If you have been contacted by an automated dialing system or you have received an unsolicited fax, contact a Chicago consumer protection attorney who regularly fights for consumer’s rights under the TCPA law. Call Keogh Law Ltd. to discuss your case today at (866) 726- 1092.