Telemarketing is on most people’s lists of everyday annoyances, yet companies still do it. The complaint for this class action alleges that Client Services, Inc. is yet another violator of the Telephone Consumer Protection Act (TCPA), for attempts to collect debt using automated calling to consumer cell phones.
The class for this action is all persons in the US who received at least one call on their cellular telephones, made using an automatic dialing system or an artificial or prerecorded voice, from Client Services, between May 14, 2015 and May 14, 2019, without having given Client Services its prior express consent to receive such calls.
At the beginning of the 1990s, when telemarketing calls became a sizable burden on consumers, Congress pondered remedies for the situation. It concluded, “Banning such automated or prerecorded telephone calls to the home, except when the receiving party consents to receiving the call or when such calls are necessary in an emergency situation affecting the health and safety of the consumer, is the only effective means of protection telephone consumers from this nuisance and privacy invasion.” The result was the TCPA.
Of particular concern were calls to cell phones, since cell phone owners pay for incoming as well as outgoing calls. As Judge Easterbrook of the Seventh Circuit said, “A less litigated part of the [TCPA] curtails the use of automated dialers and prerecorded message to cell phones, whose subscribers often are billed by the minute as soon as the call is answered—and routing a call to voicemail counts as answering the call.” He concluded, “An automated call to a landline phone can be an annoyance; an automated call to a cell phone adds expense to annoyance.”
In this case, plaintiff Edgar Kennedy allegedly incurred a debt to a third party. The debt was eventually assigned to Client Services, Inc. for collection.
On November 6, 2018, Kennedy’s attorney sent a cease and desist letter to Client Services, telling the company to stop all communications with Kennedy. The letter expressly “revoke[d] any prior express consent that may have been given to receive telephone calls especially to [Kennedy’s] cellular telephone, from an automated telephone dialing system or an artificial or prerecorded voice…”
Despite this, on November 8, 2018, Client Services again called Kennedy’s cell phone. When Kennedy picked up, he said “hello” several times but heard only silence. The complaint says this is usually a sign of the use of an automatic dialing system. No representative came on the line, so the complaint alleges it was an “abandoned call,” again a sign of the use of an automatic dialing system.
Kennedy had never given his consent to be called on his cell phone by an automatic dialing system, the complaint alleges, and even if he had, that consent was decisively revoked by his attorney’s letter.