You have probably experienced it yourself. Your cell phone rings and the number on your caller ID is one you don’t recognize. When you answer the phone, you are greeted with a few seconds of silence before a voice asks if you if you are Mr. or Ms. Whoever. These kinds of calls are placed on your cell phone through the use of an auto-dialer, and it’s likely that the call is coming from either a telemarketer or a debt collector. What you might not know is that these kinds of calls are oftentimes illegal, and that the agencies placing these automated calls to your cell phone might be liable to you for damages.
Congress enacted a law known as the Telephone Consumer Protection Act (TCPA) in 1991. At that time, Congress had concluded that unwanted automated calls to cell phones were a nuisance and invasion of privacy, and decided that banning these types of calls was the only effective way of protecting consumers from this nuisance and privacy invasion. The only exception to this rule is if the consumer voluntarily provides his or her cell phone number to the business or entity using the auto-dialer.
In the context of calls from credit card companies, collection agencies or debt collectors, the law is clear: none of these entities can call you on your cell phone through the use of an auto-dialer, unless it has prior express consent from you. In addition, the TCPA puts the burden of proving this consent on the caller. If you provided your cell phone number in your original application with the service provider or creditor, or if you voluntarily fill in your cell phone number when you make an on-line payment or you update your personal information on the payment remittance form when you mail in your monthly payment, or you leave a recorded message inviting the service provider or creditor to call you back on your cell, you will have provided the required consent. In addition, if you voluntarily provide the cell phone number to a creditor, you are deemed to have given both the creditor and any collection agencies it retains in the future the requisite consent.
If you have never voluntarily provided any kind of consent to the entity placing the unwanted autodialed calls to your cell phone, or if you have previously revoked that consent, that entity is liable to you for damages. The TCPA imposes a significant penalty of $500.00 per attempted call on those entities which violate it. Given the fact that autodialed calls end up going unanswered and/or ignored and in most cases no robo-voice is left on your voice mail, it may seem to you as if you did not receive a significant number of calls. However, you should know that when an auto-dialer is used to call a cell phone number by a debt collector, the debt collector’s call notes will oftentimes show a large number of calls (75-150) over a 3 to 4 month period of time. In those situations, the consumer has a significant claim for damages.
In many cases, the creditor, debt collector or collection agency does not obtain the cell phone number with the consumer’s consent. Creditors and bill collectors use what is known as a skip-trace to obtain your cell phone number or by using a software program which captures your cell phone number when you use it to call that entity about some issue. If a credit card company or its representatives obtain your cell phone number in either of these manners, it does not have express consent to call your cell phone with an auto-dialer, and if it uses one to contact your cell phone after the number is obtained in this manner, you would have a valid claim under the TCPA against that entity
The TCPA is a law which can be very helpful to consumers. If you feel that you are receiving unwanted automated calls on your cell phone from any entity which does not have express consent from you to call your that number, you should contact a consumer advocate immediately to discuss your claim.
Bob Healey is a licensed attorney and principle with Healey Law, LLC, a full-service St. Louis law firm, specializing in handling cases for consumers who have been harassed or mistreated by debt collectors, banks, mortgage companies and credit reporting agencies. He also represents accident victims in personal injury claims and injured workers in workers compensation claims. He is a member in good standing with the National Association of Consumer Advocates and the Missouri Association of Trial Attorneys. With 4 convenient locations in Chesterfield, Downtown St. Louis, North County (Bridgeton near DePaul Hospital) and South County (on Tesson Ferry across from St. Anthony’s Hospital) the attorneys at Healey Law, LLC have over 25 years of experience representing clients in the State and Federal Courts in both Missouri and Illinois. For more information visit: http://www.healeylawllc.com or contact Mr. Healey at [email protected]