Francisco A. Laguna & Annapurna Nandyal
In the US, businesses and individuals alike are consistently harassed by robocalls and pre-recorded calls. TransLegal receives an annoying average of 6 such calls a day, including weekends. What exactly are these recorded messages, who makes them and is there any protection against such prerecorded calls? Today we focus on robocalls or pre-recorded calls and consumers’ right to privacy.
A “robocall” is when you receive a call consisting of a prerecorded message. Such calls are placed by machines known as automated dialing announcing devices. These machines store thousands of phone numbers and dial them automatically and play a recorded message. Robocalls are extensively used by telemarketers, debt collectors and political candidates during election times. To curb the unwanted calls, national and state laws have regulations for placing robocalls. State laws vary; however, federal law prevails in all states. In 1991, Congress passed the Telephone Consumer Protection Act (TCPA) to regulate the use of prerecorded messages and to protect the consumer’s right to privacy. The TCPA, enforced by Federal Communication Commission (FCC), sets strict requirements for companies making robocalls.
Allegedly, it is illegal for companies to make robocalls if they fail to meet the following criteria:
- Express Written Consent: All non-emergency robocalls, both telemarketing and informational, require a consumer’s permission to be made. These calls include political, polling and other non-telemarketing robocalls. The consent may be given in various ways, including checking consent box on an online form. Consumers must voluntarily consent to receive robocalls or text messages when submitting their phone numbers.
- Proper identification: Companies using robocalls services must identify themselves in a proper manner. A caller must state:
- His or her identity
- The name of the business on whose behalf he or she is making the call
- The address of the business responsible for placing the call
- The phone number of that business
- “Opt Out” option: Even though consumers consent to robocalls, companies must provide an option for the recipient to opt-out of calls. Consumers can take back their permission by registering with the do not call registry.
In our experience, the robocalls TransLegal receives wholly fail these requirements. In addition, if we continue the call to speak to a live person, that person is trained to hang up if we ask to be taken off their calling list or ask to speak with a manager. Therefore, the requirements are merely illusory.
Some types of calls are exempted from the above rules. Robocalls related to emergencies or health are legal for both landline and mobile phones. Non-profit, tax-exempt organizations and political calls are legal for land line phone numbers even without written consent. However, non-profits and political parties still need express written consent to call mobile phone numbers.
In June 2015, the FCC updated the TCPA act to address the over growing menace of robocalls. Under the new order, text messages count as calls, phone companies can provide robocall-blocking services to customers, customers must consent to receive robocalls and they can revoke that consent at any time. An exception is provided to banks, health care providers and pharmaceutical companies to send a limited number of communications containing vital financial or medical information to consumers without their consent. Also, if a previous owner of a reassigned phone number consented to receive communications from a business, that business is now allowed one call to the number’s new owner before penalties are incurred.
Congress has explicitly empowered consumers to choose to take legal action against TCPA violations. Making such calls without consumers consent carries a $500 penalty per phone call. If the consumer can show that the TCPA was violated knowingly and willfully, the penalty is increased up to $1,500 per phone. To protect their rights, consumers must:
- Register their phone number in Do Not Call list. donotcall.gov
- Request their service provider to offer robocall-blocking technology, which is now legal. Using robocall-blocking technology helps FCC to keep track of unwanted calls and block those numbers for others also.
- In case, the problem persist, consumers can record that number and let the FCC know. Complaints can be filed online, telephone or by mail. fcc.gov
TransLegal placed its landline and fax line with the Do Not Call list in 2003. Twelve years later, we are still receiving them . . .
We hope others have had better results! Let us know!