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Recent Case Law Explains Increase in TCPA Claims

In a post last month I discussed how Fair Debt Collection Practices Act ("FDCPA") suits have been on the decline over the past year while Telephone Consumer Protection Act ("TCPA") claims have continued to grow and are up as much as 70% this year alone.  An obvious reason for this decline and increase is the environment we live-in, where we are virtually attached to our cellular phones.  The more companies that reach out to their debtors for collection by calling mobile numbers, the more likely it is TCPA complaints will continue to rise. 

While companies are clear as to what their boundaries are in regards to contacting consumers using autodialers and automated voice messaging, there is still a great amount of ambiguity under the TCPA allowing for the growing number of cases filed each year.  The clearest explanation for the increase in TCPA lawsuits is as a result of the opinion decided earlier this year in Soppet v. Enhanced Recovery Corp. ("Soppet"). 

In Soppet, the U.S. District Court for the Eastern District of Illinois held that under the TCPA a "called party" is the person who actually receives the call and a person can file suit under the statute even if the consumer is not the "called party".  In Soppet, AT&T believed two of its customers, Soppet and Tang, were in debt to it and hired Enhanced Recovery Corp. ("Enhanced") to collect the debt on its behalf.  The customers provided AT&T with their cellular telephone numbers as their contact information which Enhanced used to contact them on numerous occasions to collect the debt.  When calling Soppet and Tang, Enhanced used automated or predictive dialing systems and left several prerecorded messages addressed to them. 

Under the TCPA it is illegal to call a cell phone using an automatic telephone dialing system or an artificial or prerecorded voice without prior consent.  Soppet and Tang sued Enhanced for violating the TCPA when it placed numerous calls using an automated system to their cell phones, arguing that while they provided AT&T, the original creditor, with their cellular numbers, they never gave consent to use the numbers as a means of communication.

In response to the suit, Enhanced argued that both Soppet and Tang were not the "called parties" under the statute and could not file suit, however the court rejected this argument stating the TCPA is clear that any recipient of a call may file suit under the TCPA.  Enhanced also argued that it was not in violation of the TCPA as it had the debtors' prior express consent to make the phone calls.  Again, the court rejected Enhanced's argument as the consent was given to AT&T and not directly to Enhanced and prior consent is not sufficient.  The court held that prior consent to AT&T does not serve as express consent of the called party required by the TCPA for autodialed, non-emergency calls to cell phone numbers.

If you believe you have experience a violation of the TCPA and would like the advice or assistance of counsel, contact SmithMarco P.C. for a free case review.

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