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Has There Been Consent to Receive Calls That Are Harassing?


The Telephone Consumer Protection Act (“TCPA”) prohibits companies from making calls using any automatic telephone dialing system to any telephone number assigned to a cellular telephone service unless the recipient has provided prior express consent. The term “call” also includes text messages. A critical issue in many TCPA cases revolve around consent to receive calls. The TCPA prohibits certain text messages and telephone unless the recipient has provided prior express consent. The issue of consent is often litigated. Recent cases have considered the effect of a company’s terms and conditions in the analysis of whether a person has provided any requisite consent.

Consent to Receive CallsMany courts have held that a person has given prior express consent to receive calls simply by providing their cellular telephone number to a company when the company’s terms and conditions allows for the consumer’s telephone number to be used for business purposes. Thus “prior express consent” to receiving telephone calls and text messages can be contained in a broad, nonspecific contract for goods or services. Companies shield themselves by creating a consent provision in its terms and conditions that states that a person automatically agrees and consents to receiving telephone calls and text messages by an automatic telephone dialing system or prerecorded voice to their cellular telephones.

What happens when you want the company to stop calling or texting you? According to the Federal Communication Commission (FCC), a called party can revoke consent “at any time and through any reasonable means.” So if you have given consent to receive calls, you can withdraw that consent. The company cannot limit the manner in which revocation of consent may occur. The FCC has stated that “consumers have a right to revoke consent, using any reasonable method including orally or in writing.” No matter the consent previously granted, consumers have the ability to revoke the consent relatively easily. This means that you just have to tell the caller on the phone to stop calling you. Record that conversation if possible and document the date where you told the caller to stop contacting you.

The TCPA is a strict liability statute, meaning liability can be imposed without a finding of fault. A plaintiff need only show that the conduct occurred and that the defendant was responsible. For each violation of the TCPA a person can receive $500.00 per violation (i.e., per call, text message, or fax). For willful or knowing violations, a court can award damages up to $1,500.00 per violation. If you believe you have been contacted in violation of the Telephone Consumer Protection Act, the TCPA Attorneys at Maginnis Law, PLLC may be able to help. For TCPA cases we provide free consultations and case evaluations and may be able to accept your case on a contingency fee basis – meaning no upfront costs to you. To discuss your case, contact Karl S. Gwaltney at 919.960.1545 or through email at kgwaltney@maginnislaw.com.

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