While the TCPA does not define the phrase “prior express consent,” the FCC (vested with authority to promulgate rules to implement the TCPA) has defined it as consent provided by the consumer during the transaction resulting in the debt. According to the FCC, a specific example of such consent occurs when a consumer lists his or her cell phone number on a credit application seeking the number. Though the FCC concludes that a request for a debtor's cell phone number in a credit application need not disclose the purpose for which the number is sought, it has suggested that credit ...
The phrases “artificial” and “pre-recorded voices” are self-explanatory — for example, an artificial voice is a computer generated voice, and a pre-recorded voice is simply a pre-recorded message that an individual would hear when answering a call. The TCPA defines Automatic Telephone Dialing Systems (ATDS) as equipment that has the capacity to store or produce telephone numbers to be called using a random or sequential number generator to dial numbers. ATDS have also been described as including: (1) predictive dialers, i.e., equipment that eliminates the need for time ...
Though the TCPA is a federal statute, until recently, a split of authority existed as to whether federal district courts could exercise original federal question jurisdiction over TCPA claims. This was due to the fact that the Act contains distinct provisions governing civil actions brought by private parties, and state attorneys general. On the one hand, the TCPA allows private parties to bring TCPA claims in an appropriate court of a state if otherwise permitted by the laws or rules of that state. States attorney generals on the other hand are limited to bringing TCPA claims in ...
Private party litigants can seek the following relief under the TCPA: (1) Injunctive relief; (2) Actual damages or $500 for each violation of the Act (whichever is greater); or (3) Both Injunctive relief and damages (47 U.S.C. § 227(b)(3)). Courts also have the discretion to treble damage awards if a violation of the Act is "willful and knowing," i.e., each $500 violation could be increased to $1,500 in the court's discretion. What constitutes a "willful and knowing" violation of the TCPA depends on the court in which the action is filed. Specifically, some courts hold that a defendant ...
The Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is a federal statute that was enacted in 1991 to address concerns relating to telemarketing/solicitation practices. It amended the Communications Act of 1934, and has been characterized by Manuel H. Newberger, in FDCPA Updated On The TCPA, Time-Barred Debt and Voice Mail Messages, as “one of the new weapons of choice of those suing debt collectors.” But it has far broader application. For example, it has entangled not only debt collectors but also other businesses ranging from local businesses to national banks and ...
The Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is a federal statute that was enacted to address concerns relating to telemarketing/solicitation practices. During the past several years, however, the Act has been applied to render multi-million dollar verdicts and settlements against both big and small companies across the country. Judicial interpretation of the Act has also steadily increased and undergone significant change. For example, until recently, many Circuit Courts of Appeal believed that the TCPA did not create federal question subject matter ...