The Telephone Consumer Protection Act, or TCPA for short, is a great consumer protection statute for Indiana consumers. Its application is pretty specific, however. The primary goal of the TCPA is to prevent unauthorized telephone calls to your cell phone made by an autodialer. So, to prevail in a TCPA lawsuit, the consumer must show:
(1) phone calls to a cell phone;
(2) by means of an autodialer;
(3) without the consumer’s prior express consent.
Let’s briefly discuss these requirements. First, the cell phone requirement is easy. The calls must be placed to a cell phone. The second requirement, that the call be made by an autodialer, isn’t that complicated either. Generally, you will know that an autodialer is being used if, when you answer, there is a slight delay between the time you answer and a real person responds to you. This delay is time it takes for the autodialer to notify the operator that a person has answered and for the operator to pick up the phone and begin talking. You can also know that an autodialer is being used if you hear a computerized voice or prerecorded message or a voicemail is left by a computerized voice or prerecorded message.
The third requirement can be a little more tricky. The courts have concluded that if you provided your cell phone number to the original creditor in connection with the debt, that constitutes prior express consent. So the easiest way to know that there is no prior express consent is to know that you did not provide your cell phone number to the original creditor, or anyone else trying to collect the debt if it is not the original creditor calling you. Revocation of that prior express consent may be possible, with written revocation being preferable to oral revocation, but one court has recently held, in a poorly reasoned decision, that the TCPA does not permit such revocation. See Gager v. Dell Financial Services, LLC, 2012 WL 1942079 (M.D.Pa. May 29, 2012) (Robert D. Mariani, District Judge).
The TCPA has some real teeth. A consumer can recover up to $500 per phone call that violates the TCPA, and up to $1500 per phone call if the consumer can show that the TCPA was violated knowingly or willfully. Often when an autodialer is being used, there are a lot of calls. A harrassing number of calls. So you can imagine the total liability can get quite high.
If a creditor or debt collector has called your cell phone with an autodialer without your consent, please contact the Indiana Consumer Law Group/The Law Office of Robert E. Duff at 800-817-0461.