Under the Telephone
Consumer Protection Act (“TCPA”) the Federal Communications
Commission (“FCC”) issues rules and regulations allowing consumers
to file suit and collect damages for receiving unsolicited
telemarketing calls, faxes,
pre-recorded calls, autodialed calls, robo-calls or SMS text
messages.
“Telemarketing” calls are calls received by a consumer made by
advertisers offering products or services to consumers.
Autodialed calls are phone calls made with an actual person or
pre-recorded message that is placed using an “autodialer” or
automatic telephone dialing system. This system produces and
stores telephone numbers using a random number generator. A
robo-call is a phone call that uses an “autodialer” system to
deliver a pre-recorded telemarketing message. Also included
under the umbrella of the TCPA are SMS text messages sent to cell
phones if they are submitted for marketing or collection
purposes.
Illinois, among numerous other states, now requires express consent
from a consumer prior to engaging in telemarketing calls or text
messages. While exceptions such as calls manually dialed that
do not contain a pre-recorded message do exist, an established
business relationship will no longer relieve an advertiser or
collector from this express consent requirement.
Compliance with the new amendment to the TCPA may
be satisfied by electronic and digital forms of a signature
including consent from a consumer by email, a website form, text
message, telephone key press or voice recording. This consent
however must be unambiguous, meaning the consumer must be clear and
certain that he or she has agreed to receive calls or texts by
autodialer or pre-recorded messages and the consumer must designate
the phone number at which the communication may be
placed.
In the past, companies could rely on an established business
relationship to avoid the express consent
requirement however under the new amendment, such a relationship is
no longer sufficient. Failure to comply with the TCPA allows
a consumer to recover either actual damages or statutory damages
ranging from $500.00 to $1,500.00 per violation.
If you believe you are involved in a violation of the TCPA and
need legal advice, contact SmithMarco
P.C. for a free case
review.