Telephone Consumer Protection Act (“TCPA")
I. The TCPA Prohibits Advertising Via Junk Fax
• The TCPA prohibits sending an unsolicited advertisement to a telephone facsimile machine.
• 47 U.S.C. §227(b)(1)(c) provides in part:
(b) Restrictions on use of automated telephone equipment
It shall be unlawful for any person within the United States–
(c) to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine;...
The TCPA defines “unsolicited advertisement" as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s express invitation or permission, in writing or otherwise." 47 U.S.C. §227(a)(5).
Established Business Relationship" exception to liability requires 3 factors:
(1) Sender of unsolicited advertisement has established business relationship with the recipient;
(2) Sender obtained the telephone facsimile machine number through –
(i) voluntary communication by the recipient of the unsolicited advertisement, OR
(ii) recipient voluntarily agreed to make fax number publicly available in directory, advertisement, or on Internet site; AND
(iii) unsolicited advertisement contains a notice
47 U.S.C. 227(b)(D) (“Opt Out Notice")
47 U.S.C. 227(b)(1)(c)
47 U.C.C. 227(b)(2)(D)
Holtzman v. Turza, 2010 U.S. Dist. LEXIS 80756, *14 (N.D. 2010) (Section 227(b)(1)(c)(iii) and 227 (b)(2)(D) “require that all fax advertisements include a clear and conspicuous opt-out notice, informing the recipient that she can request that the sender not transmit any future unsolicited fax advertisements"); MSG Jewelers, Inc. v. C & C Quality Printing, Inc., Cas No. 07AC-028676 at *3 (Mo. Cir. July 17, 2008)(“[a]ll advertising faxes including those sent with the express permission of the recipient – must include a proper opt-out notice."). - But see Nack v Walburg, 2011 WL 310249, at * 4 (E D Mo) (Opt Out Notice only required for unsolicited faxes).
Who Is Liable
The entity/entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with the TCPA’s provisions regarding facsimile advertisements, regardless of whether the facsimiles were sent by so-called independent contractors.
Glen Ellyn Pharmacy, v. Promius Pharma, LLC, 2009 U.S. Dist. LEXIS 83073, 7-12 (N.D. Ill. 2009) (citing In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC 95-310, CC Docket NO. 92-90 at pp. 34-35, 1995 WL 464817, (Aug. 7, 1995);Worsham v. Nationwide Ins. Co., 138 Md. App. 487 (Md. Ct. Spec. App. 2001);Hooters of Augusta v. Nicholson, 245 Ga. App. 363 (Ga. Ct. App. 2000).
II. TCPA Prohibits Auto Dialer Calls To Cell Phones
Congress found that unwanted automated calls were a “nuisance and an invasion of privacy, regardless of the type of call." Banning such calls was “the only effective means of protecting telephone consumers from this nuisance and privacy invasion." Pub. L. No. 102-243, §§ 2(10-13)(Dec. 20, 1991) codified at 47 U.S.C. § 227.
The TCPA makes it unlawful for any person within the United States. . . to make any call using any automatic telephone dialing system or an artificial or prerecorded voice . . ." 47 U.S.C. § 227(b)(1)(A)(iii)
The TCPA defines ATDS as “equipment which has the capacity - (A) to store or produce
Telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C § 227(a)(1).
Focus on ATDS is whether it has the capacity and not whether it actually used that capacity.
-Satterfield, 569 F. 3d at 951; Lozano, 702 F. Supp. 2d at 1010-1011; Vance v. Bureau of Collection Recovery LLC, No. 10-06324, 2011 U.S. Dist. LEXIS 24908 at *6 -7 (N.D.Ill., March 11, 2011);Lozano v. Twentieth Century Fox Film Corp., 702 F. Supp. 2d 999, 1010-1011 (N.D. Ill. 2010);Hicks v. Client Services, Inc., 2009 WL 2365637 (S.D.Fla. June 9, 2009);See also Joffe v. Acacia Mtg Corp., 121 P.3d 831, 839 ( Ariz. App. 2005).Kazemi v. Payless Shoesource, Inc., 2010 U.S. Dist. LEXIS 27666 (N.D. Cal. Mar. 12, 2010).
CAPACITY TO AUTODIAL & CONSENT
Capacity issue is important as virtually no one uses a pure autodialer. Instead, most most companies use some variation of a predictive dialer, which is simply a more productive dialer.
The TCPA directed the FCC to prescribe regulations implementing the restrictions on the use of autodialers. 47 U.S.C. § 227(b)(2). Following Congress’s directive, the FCC has expanded the definition of an ATDS to include predictive dialers. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, 18 FCC Rcd 14014, 14093 (June 26, 2003) (“2003 Order").
In 2008, in response to a petition by debt collection trade association ACA International, the FCC held the TCPA applied to debt collectors and again expressly reaffirmed that predictive dialers used for collections calls are ATDS when it is “equipment paired with predictive dialing software and a database of numbers."In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Request of ACA International for Clarification and Declaratory Ruling, CG Docket No. 02-278, 23 FCC Rcd 559, 565-566 (Dec. 28, 2007);Griffith v. Consumer Portfolio Serv., 2011 U.S. Dist. LEXIS 91231 (N.D. Ill. Aug. 16, 2011)
Unless the cell was provided by the consumer (not skipped traced) there is no consent even under the FCC’s 2008 order and the caller has the burden to prove consent.
The FCC’s holdings with respect to predictive dialers are final and controlling under theHobbs Act. CE Design, Ltd. v. Prism Business Media, Inc., 606 F. 3d 443, 446 (7th Cir. 2010).
III. TCPA Prohibits Unsolicited Advertising Via Text Message
• Text Messages are calls under the TCPA.
• A “call" under TCPA need not be oral. --TCPA prohibits calls to “a paging service"
IV. The TCPA Prohibits Advertising via Pre-Recorded Message to Residential Lines and Cell Phones
A “telephone solicitation" is defined as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.
Exempted from this prohibition are:
Calls made with prior express invitation or permission;
Calls made to consumer with Established Business Relationship;
Calls made by a by a tax- exempt nonprofit organization.
47 U.S.C. § 227(a)(3); 47 C.F.R. § 64.1200(f)(12).
A “prerecorded message containing free offers and information about goods and services that are commercially available are prohibited to residential telephone subscribers, if not otherwise exempt." TCPA Revisions Report and Order, 18 FCC Rcd 14097-98 (2003).
V. DAMAGES UNDER THE TCPA
• Section 227(b)(3)(B) provides a minimum of $500.00 in statutory damages per fax, call or message. Hinman v. M and M Rental Center Inc., 596 F. Supp. 2d 1152 (N.D. Ill. 2009). Awarding $500 per facsimile for a total of $3,862,500 based on the total of 7,725 unsolicited advertisements that defendant sent to the class. The TCPA prohibits the sending of unsolicited fax advertisements and make no reference at all to receipt. Id. at 1159. Ira Holtzman, C.P.A., & Assocs. v. Turza, 2011 U.S. Dist. LEXIS 97666 (N.D. Ill. Aug. 29, 2011) (Awarding 221 class members $500 in statutory damages for each of the 8,430 times defendant successfully sent the Daily Plan-It fax to one of the class member's fax machines, for a total of total of $4,215,000.)
• If a violation was “willful or knowing", the court can treble the amount under 227(b)(3)(c). It is irrelevant to a finding of willfully or knowingly whether the junkfaxer intended to violate federal law. FCC Staff Opinion (letter from Acting Chief of the Enforcement Division, Common Carrier Bureau, Glenn T. Reynolds to Robert Biggerstaff, dated July 27, 1999).
-- Sengenberger v. Credit Control Services, Inc., 2010 U.S. Dist. LEXIS 43874 (N.D. Ill. May 5, 2010)(granting summary judgment on TCPA claim and finding that an intentional act equates to willfully or knowingly); See Nicholson v. Hooters of Augusta, Inc., 95-RCCV-616, Richmond County, Ga (Judge Brown, April 25, 2001), Jury awarded $3,000 for each of the 1,321 class members for transmitting six unsolicited facsimile advertisements. The Court tripled that amount to $9,000 per class member for a total of $11,889,000.