Ninth Circuit Updates Language In Tcpa Decision
The U.S. Ninth Circuit District Court of Appeals in Pasadena, California recently updated its earlier opinion regarding the Telephone Consumer Protection Act (TCPA); on December 28, 2012, the court changed some of the language in a decision it had written earlier in the year. The case ruled against a debt buyer; the case was not changed by the updated opinion. The TCPA restricts telephone solicitations, the use of automated telephone equipment, and unsolicited advertisements. Specifically, the TCPA limits the use of automatic dialing systems, prerecorded voice messages, unsolicited text messages, and junk faxes.The Ninth Circuit court edged away from words that offered a tight reading “express consent” for the use of autodialers to call cell numbers. In October of 2012, the court affirmed a lower court decision that granted an injunction to the plaintiff and provisional class action status to his lawsuit. Meyer v. Portfolio Recovery Associates looked at whether debt buyers are allowed to employ an automated dialer to contact cell phone numbers (that the machine obtained in the skip tracing process). The appellate panel wrote in October:“…prior express consent is deemed granted only if the wireless telephone number was provided by the consumer to the creditor, and only if it was provided at the time of the transaction that resulted in the debt at issue. Thus, consumers who provided their cellular telephone numbers to creditors after the time of the original transaction are not deemed to have consented to be contacted at those numbers for purposes of the TCPA.”The court’s revised opinion in late December changed much of that language, replacing it with:“…prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed.”The new language still requires companies (who want to auto-dial mobile numbers) to receive consent specific to the calls they want to make, and this must often be done through land lines. Many people and households use mobile phones exclusively, which makes it difficult to attain consent (via an auto-dialer, at any rate).In the case of Meyer v. Portfolio Recovery Associates, the Ninth Circuit Court upheld its earlier injunction and the lawsuit certification. Portfolio Recovery Associates had been auto-dialing cell phone numbers gathering by skip tracing—no consent had been solicited or received before the auto-dial calls were made. This is illegal under the TCPA; express consent must be obtained before an auto-dialing machine can call a cell phone, except in emergency situations.So, what should you do when you get a robocall or an unsolicited text message? Hang up the phone. Do not press 1 or any other numbers to get off the list. Then, contact Agruss Law Firm, LLC, for a free consultation. The Federal Trade Commission has stopped billions, yes billions, of robocalls in the last two years. Agruss Law Firm, LLC, will do the same for you. We will aggressively enforce the law to stop robocalls and unsolicited text message. Not only will we stop the calls and text messages, but you may be entitled to money damages, too. Damages in TCPA cases range from $500.00 - $1,500.00 per call or text.
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