TCPA Robo-Call

Ever receive what is commonly termed a “robo-call” to your cellular telephone?  Likely you have.  More and more consumers are receiving unsolicited pre-recorded telephone calls placed to their cellular telephones.  These obnoxious calls have increased over the past few years as a direct result of the decrease in the cost to place such calls.  Now, more and more companies soliciting their goods and services are violating the Telephone Consumer Protection Act by obtaining a list of telephone numbers and placing unsolicited advertising calls through the use of pre-recorded messages to cellular telephones.  This is an issue the FCC recently addressed by promulgating rules which require prior express written consent which must be unambiguously notify the consumer that providing a cellular telephone number to a company may result in such unwanted calls.  See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, FCC Report and Order, CG Docket No. 02-278 (Feb. 15, 2012) (“2012 Report and Order”).


While these new protections are good for consumers and hopefully will protect important privacy interests, (who wants their cellular telephone to be hijacked with pre-recorded “spam” like our email in-boxes), what many consumers do not realize is the trend to contractually waive consumers rights against receiving pre-recorded calls to cell phones when signing up for many consumer services.  As an example, many companies are now placing “TCPA waivers” in their consumer contracts.  See Time Warner Cable’s contract available online, as an example.  Many of the large financial institutions are following this trend.  As we all know these terms are one sided, non-negotiable contracts of adhesion, but if present in all contracts, a consumer really has no choice but to consent.  (The alliterative would be to keep your money out of the banks and under your mattress or live without cable television).


How Consumers Should Handle TCPA Waivers In Contracts

As these TCPA waivers further find their way into more and more consumer contracts, what is a consumer to do?  A viable alternative is to provide notice revoking any type of prior express consent to receive these calls after the contract is signed.  Many courts have long held that a consumer who initially provides consent can revoke that consent.  In Gutierrez v. Barclays Group, et al., 10-CV-1012 DMS (BGS), the Honorable Dana Sabraw found just that.  Revocation of consent, even orally, is allowed under the TCPA.  While no 9th Cir. case has affirmed this holding, other Circuits have.  In Gager v. Dell Financial Services LLC, the Third Circuit Court of Appeals ruled that express consent to be called can be revoked at any time.


How To Revoke Prior Express Consent

Consent under the TCPA can be revoked in a number of ways.  As referenced above, revocation can take place orally.  As a matter of last resort, there is nothing wrong with telling the bank or collection agency hounding you with unrelenting pre-recorded calls to your cell phone to “stop.”  A better course of action would be to send a letter documenting the revocation.  A short concise letter identifying who you are, your account number or other identifying information, and a clear request to “stop placing automated or pre-recorded calls to my cell phone number at (xxx) xxx-xxxx” should do the trick.  It is important to document these requests, as it often comes down to your word verse the banks.


If The Calls Do Not Stop

After revocation, these types of calls must stop immediately.  The TCPA provides substantial remedies for non-compliance.  $500 for each negligent violations and $1,500 for each willful violation.  With some financial institutions and collection agencies placing on average of seven calls per day, you can do the math.




JBS          Joshua B. Swigart