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Consumer Sues After Receiving 1,026 calls

In a recent Telephone Consumer Protection Act (TCPA) lawsuit heard in a Federal Court, plaintiff Heather Nelson alleged that debt collection agency, Santander Consumer USA called her cell phone 1,026 times and left 116 prerecorded messages over the course of a year.

Nelson sued the debt collector for violating the TCPA, and was awarded $571,000 in statutory damages.  Nelson argued that the Santander called her cell phone using an automatic telephone dialing system or dialer preview mode which is a violation of the TCPA.  The court agreed and awarded her damages for these violations of the law.

Using a dialer preview mode, a company’s computer system  predict via algorithm when an agent will become available to receive the next call, based on the number of times the receiver has answered the phone and not answered the phone. In other words, with preview dialing, all an employee from the company would have to do is choose a telephone number from a computer screen, which violates the TCPA.

The TCPA  was enacted  to protect consumers from aggressive telemarketers and was codified as 47 U.S.C. Section 227. Section 227 provides a variety of restrictions against telemarketers, but most recent lawsuits are rising out of the prohibitions of Section 227(b)(1), in particular subsections (A), (B) and (C), which address calls or transmissions made from an automatic telephone dialing system (ATDS). The following summaries describe these prohibitions briefly:

  1. Section 227(b)(1)(A)(iii): Prohibits the use of an ATDS or an artificial or prerecorded voice to make non-emergency calls without prior express of consent of the other party to a cellular phone, or other devices or service for which the called party is charged.

  2. Similar to subsection (A), Section 227(b)(1)(B): Prohibits making non-emergency calls with an artificial or prerecorded voice to residential phone lines without prior expressed consent. FCC regulations exempt some types of calls made under this section, including calls that have nothing to do with advertisement or some commercial product, or that the other party has an established business relationship.

  3. Section 227(b)(1)(C): Prohibits use of fax machines, computers, or other devices to send unsolicited advertisements to fax machines. Cases exempt from this rule would be if the caller and the other party an established business relationship where the fax would contain a compliant opt-out notice.

If you are being harassed by debt collectors or telemarketers in violation of the TCPA, you may be entitled to compensation.  Please call California Consumer Protection Attorney at (877) 449-8898 for a free consultation.

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