You can sue if you have been a victim of “robocalling” or “robotexting.” There is a federal statute called the Telephone Consumer Protection Act (“TCPA”) passed by Congress in 1991. See 47 U.S.C. § 227. The TCPA prohibits robocalls to consumers and has, over the years, been expanded to prohibit robotexting. More specifically, the TCPA bans use of “automatic telephone dialing systems” to make calls or texts using an outgoing pre-recorded message/text without the consent of the consumer being contacted. Violations carry a recoverable money-damage penalty of $500 per call/text subject to tripling if the unlawful calls/texts were made willfully or knowingly. Note that the TCPA does not prohibit a live person from calling or prohibit auto-dialing if a live person is present on the call; rather it bans auto-dialing and automated voice messages. Abusive debt collection calls involving human representatives are prohibited by the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et. seq.
Your rights to not be harassed by robocalling and texting were recently enhanced by the US Supreme Court. The court issued an opinion making the TCPA applicable to those attempting to collect debts owed to or guaranteed by the federal government. See Barr v. American Association of Political Consultants, Inc., Case No. 19-631 (July 6, 2020).
Back in 2015, the TCPA was amended to allow debt collectors to use robocalls and robotexting to attempt to collect debts owed to the federal government or to collect debts guaranteed by the federal government. This was particularly important to lenders and others holding debts with respect to student loans guaranteed by the federal government and for various loans associated with small businesses, farmers and those taking loans pursuant to disaster-relief declarations. The Supreme Court’s opinion in Barr invalidated the 2015 amendment on the grounds that it unlawfully gave preference to government speech over other types of speech. That is, the government was allowing itself to “speak” — attempting to collect debts — via robocalls and robotexting, but was prohibiting any other type of speech via those methods. In general, when the government regulates speech, it must do so uniformly and without discrimination.
This is good news for consumers and others seeking relief from abusive debt-collection practices.
In general, particularly here in California, the prohibitions against robocalling and texting have been getting stronger. For example, in recent years, some companies have argued in consumer class-action lawsuits that the TCPA only applies when a company uses an automatic dialing machine that dialsrandomly generated telephone numbers or sequences. These companies have argued that the TCPA does not prohibit auto-dialed calls with automated messages if the telephone numbers are stored in a computer database. However, here in California those arguments have been rejected by federal courts. For example, in Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), the Ninth Circuit Court of Appeals, located in San Francisco, specifically ruled that “auto-dialing” includes machines and devices that dial numbers from stored lists. The court noted that the purpose of the TCPA was to defend consumers from abusive telemarketing practices. To effectuate that purpose, the court held that there was no importance in the difference between an auto-dialer that randomly generated numbers and one that uses stored numbers. Marks was a good decision for consumers here in the Golden State.
Contact an Experienced Consumer Rights Attorney
For more information, contact the Consumer and Debtor Rights attorneys at Guardian Litigation Group. We have the tools and legal experience necessary to protect you and to recover money damages for you if you have been the victim of robocalling and/or robotexting. Our Mission is to provide unparalleled legal services and support to consumers and financially distressed individuals. We can be reached via our contact page or by phone.
