Last week on January 20, 2016, in Campbell-Ewald Co. v. Gomez, ___ U.S. ___, 2016 WL 22835 (Jan. 20, 2016), the Supreme Court issued several important rulings in a TCPA class action.  These rulings will help consumers in cases where they are receiving unwanted text messages; being contacted by various parties seeking to collect a debt and debt collection by federal contractors.

• “A text message to a cellular telephone … qualifies as a “call” within the compass of” the TCPA’s prohibition against autodialed or prerecorded calls to cell phones without the consumer’s prior express consent.
• A defendant can be liable for another’s TCPA violations based on common law principles of agency.

The Southern District of Florida just ruled on a Motion to Dismiss on October 13, 2015 in a TCPA case that more is necessary to properly allege a TCPA case.  The Court stated:  the Plaintiff cannot plead, in blanket terms, that she is entitled to statutory damages for each and every violation”, yet not plead the number of calls, when the calls occurred, and/or the content of the calls received.  The Court ruled that blanket non-specific allegations do not place the Defendant on notice as to the claims that are being brought against it.  Case dismissed unless the consumer has more information and can amend their complaint to state some specifics.

Don’t count on relying upon getting records at some later date from your cell phone provider.  Cell phone records from a cell phone provider are sometimes only retained for a few months, often do not record unanswered calls, and lastly are not available unless you can subpoena them (but you first have to survive a motion to dismiss by having specifics of some calls).  So keep a handwritten log.  Take screen shots.  Save voice messages.

While we do not need the date and time of every call, it is clear that we need to allege some dates, some times and the content of the calls whenever possible.  We ask our clients to log date and time of as many calls as possible and make a written record or note of any calls where the request to stop calling the cell phone are made.  We ask our clients to revoke consent multiple times and multiple ways (phone, fax, U.S. mail).

In Florida, the right to revoke calls to a consumer’s cell phone is alive and well. Debt collectors who continue to call these cell phones after being told not to are exposing their companies to damages of up to $1,500 per call. That adds up quick.

So don’t just ignore or block the calls. Take a call. See who it is. Write down who it is, and tell them not to call your cell phone again. Write that down along with the date and time of the call. Then keep a log of calls or take screen shots of continued calls. You don’t have to answer them all. Just the fact they are continuing to call is good enough. The good creditors will follow the law and stop calling. Problem fixed. For the ones that keep calling and ignore your directive not to call their cell phone, we’d like the opportunity to go after them.

Here’s some current law on the right to revoke consent to call (I recommend telling them not to call and writing down the date and time and who you spoke to — even if you didn’t give them permission to call in the first place).

The Consumer Financial Protection Bureau (CFPB) recently fined DriveTime Automotive Group, Inc. $8 million for harming customers for making harassing debt collection calls and providing inaccurate credit information to credit reporting agencies. Such a large fine underscores the importance of the consumer protection laws such as the FDCPA, the FCCPA for Florida consumers and the TCPA for cell phone calls.

These consumer statutes basically allow private attorneys to sue creditors on behalf of their clients and obtain both statutory damages and attorney’s fees. Without that, no one would be able to financially afford to challenge creditor violations.

So what were the most common violations by DriveTime that the CFPB found?