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The Costs of Dialing a Wrong Number

Dialing a wrong number is a fact of life for most people, but a company calling the wrong person using an autodialer can face serious penalties. This is the result of the Telephone Consumer Protection Act (TCPA), which lets consumers sue companies calling them without consent for $500 a call. In fact, Florida citizens have recently been suing major companies under this Act, including lawsuits against Bank of America and CVS. Fortunately for companies, there are a wide variety of potential defenses available in these sorts of cases.

The Telephone Consumer Protection Act

The TCPA was designed to protect consumers from abusive or inconvenient phone calls, but it does so by placing a large amount of potential liability on companies. The Act gives consumers a cause of action if a company uses an automated system to call or text them without their prior express consent consent. It also forbids other things such as the sending of unsolicited advertisements by fax, but those are less common problems given current technology. The Act also creates statutory damages of $500 for each call. Additionally, if the court finds that the company making the calls willfully violated the Act, then the court may triple those statutory damages for a maximum of $1,500 per contact.

While these damages can certainly add up on their own, they can be even more serious in the case of class action lawsuits. Those types of lawsuits can aggregate numerous plaintiffs’ claims, provided that they are similar enough. This aggregation can lead to hundreds or thousands of plaintiffs bringing claims at once. However, such aggregated claims are difficult to bring because the law imposes strict requirements that all the plaintiffs be in very similar situations. Additionally, regardless of whether the claims can be brought as one, there are also defenses available to them.

Available Defenses

Companies using these sorts of automated dialers should be aware of the defenses to TCPA claims, so that they can put measures in place to take advantage of them. One of the most common defenses is that the consumer did give consent to have the company call them. There have been cases where merely giving the company their telephone number qualified as explicit consent, but that is not always enough. Consequently, companies looking to protect themselves should ensure they get explicit consent in writing in order to head off any future TCPA claims.

Another potential defense applies in cases where the company calls the wrong consumer by mistake. Tens of millions of phone numbers are recycled every year, so companies can call a number that they think they have consent for, only to find out that they have called someone without their consent. Companies have argued that what matters is the consent of the person that they are trying to call, not the person that they actually called. Courts in Florida have so far rejected this argument, but the FCC is considering the creation of a rule that would override that rejection.

TCPA claims can quickly become costly. If your business is facing these or other claims, contact a Florida business litigation attorney at Pike & Lustig, LLP today.

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