Federal Judge Greenlights Lawsuit Filed by Freedom Mortgage Customers For Repetitive and Unwanted Telemarketing Calls
Robocalls… Everybody hates them. Even the people that work in the call centers making these calls hates them. One person who worked making calls for an insurance company tells us half the people who worked at her call center were stoned. That doesn’t surprise us.
It shouldn’t come as any surprise that very few consumers respond favorably to unwanted telemarketing calls. That already low percentage gets worse when the recipient of the call is on the federal Do Not Call list. People add their names to that list for a reason. Unfortunately, millions of auto-dialed calls are illegally made each day.
The war being waged between telemarketers and consumers has become one of technology. Shady telemarketers ignore the do not call list and use autodialers to call tens of thousands of people daily. If someone actually picks up, the call is then transferred to a live operator. These same shady telemarketers have also developed technology to spoof phone numbers in an effort to trick the recipient’s caller ID.
Our side has some tricks up its sleeve too. Software companies now offer a variety of apps such as RoboKiller and NoMoRobo. For a small fee, these services identify suspicious callers and block unwanted telemarketing calls.
In 1991, Congress passed the Telephone Consumer Protection Act. That law restricts the making of telemarketing calls, the use of automatic telephone dialing systems and artificial or prerecorded voice messages. Outlawing so called robo calls should be easy but telemarketers won’t give up. Like many laws, the rapid growth of technology has made it increasingly difficult for lawmakers and regulators to keep up. This post looks at some of the legal issues that have surfaced and how consumers can fight back.
Consumers Sue Freedom Mortgage over Unwanted Unwanted Telemarketing Calls
In a recent case in New Jersey, Freedom Mortgage sought to dodge a class action complaint about its telemarketing practices. The case was filed by a Pennsylvania couple tired of receiving unwanted telemarketing calls. When requests to be placed on Freedom’s Do Not Call list were ignored, they filed a Telephone Consumer Protection Act lawsuit. That law allows consumers to receive between $500 and $1500 for each call.
To the lay person, these cases seem “cut and dried.” As this post will show, these cases are rarely that easy.
Freedom sought to dismiss the case because the plaintiffs couldn’t “plausibly allege” that Freedom 1) used an ATDS, 2) couldn’t prove that Freedom impermissibly used a prerecorded or artificial voice and 3) failed to show that the company did not comply with the couple’s do-not-call requests.
Robocalls and Automatic Telephone Dialing Systems (ATDS)
The “robo” on robocalls refers to the use of Automatic Telephone Dialing Systems. The hang up rates on telemarketing calls is extreme. Even when calls centers are located in countries with low labor rates, it is still expensive to have someone looking up phone numbers and manually dialing each call. Enter technology and ATDS.
When originally drafted, ATDS software was in its infancy and smartphone were a dream. Congress defined ATDS in 1991 as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers.”
Since enactment of the law, the FCC has struggled to keep up with technology and issue guidance to the industry and public. A recent federal appellate court case questioned the current FCC definition. The agency is working to fix its regulations but probably won’t release new rules until 2019. Even then, some companies in the telemarketing industry will certainly challenge those new rules.
Does that mean telemarketers can do whatever they want for the next few years? Of course not although some in the industry are brazen enough to act that way.
Today a simple smartphone could be used as an autodialer. They store numbers and a simple app allows the phone to dial random numbers.
So what did the court do with Freedom Mortgage?
U.S. District Court Judge Jerome Simadle outlined a common sense approach. Congress in passing the TCPA wanted “to protect individual consumers from receiving intrusive and unwanted calls.” To violate the TCPA, one must show that “the defendant [wrongdoer] called a cellular telephone number, using an ATDS without the recipient’s prior written consent.”
Before continuing, we should note this case was about calls to cell phone numbers. There are prohibitions to calling residential numbers too. We should also point out that many loan agreements, application forms and contest entries contain a consent for telemarketing calls. Companies must still maintain a do-not-call list and you can opt out at any time. Companies by law must honor your opt out request or revocation of consent. There is an exception for emergency calls.
Knowing what type of equipment a company is using is difficult for the consumer to know. Courts recognize that. If you receive a call and there is a long pause before someone picks up or a prerecorded / computer generated voice begins the call by announcing that you will be connected with an operator, chances are good that an ATDS was used.
Telemarketing Calls Using an Artificial Voice
Even if a consumer doesn’t know how the call was dialed, telemarketers are not supposed to use artificial, computer generated or prerecorded voices. Once again, as a consumer you can consent to these calls. We are assuming that for anyone reading this post, you have not consented to telemarketing calls or have revoked your consent.
Freedom attempted to argue that the call recipients couldn’t prove or didn’t prove that the messages left were done by an artificial voice. Once again, the court adopted a common sense approach. For purposes of the complaint, it was sufficient that the call recipient to simply allege that the clarity and cadence of the voice shows the voice was artificial or prerecorded.
Let’s face it. We all know the difference between an artificial voice and live voice. Technology has improved but not to the point where we can’t differentiate between real and fake voices. In the words of the court, the plaintiffs “need not offer detailed factual allegations so long as the [Complaint] offers enough factual enhancements to cross the line between possibility and plausibility…” Here that meant the call recipients need only claim that the clarity and cadence of the message indicates they were not left by a live human.
Unwanted Telemarketing Calls and Do Not Call Lists
How many of us have received a telemarketing call that as part of the message said “press one” to be removed from our list. Reputable companies honor those requests. It also the law.
Whether or not you consented to telemarketing calls, whether or not the call was placed with a predictive auto dialer and whether or not the call was made with a recorded voice, everyone has the ability to opt out of these calls. That is the final failsafe built into the law. You can always say that you don’t want to receive any more calls.
In fairness to the telemarketers, that opt out has to be clear and concise. There are no magic words or phrases that need to be uttered as long as you make it clear you want to be removed from their list or do not want to receive additional calls.
Freedom Mortgage challenged the lawsuit suggesting that consumers should allege the date and time they asked to be placed on a company’ do not call list and the exact words used to revoke consent. Does that mean if you are relaxing on a beach and receive a telemarking call you have to run to your car so as to memorialize the call specifics and how you revoked consent? That would be absurd and place an impossible burden on consumers.
Thankfully, the court agreed. Judge Simandle ruled that at the complaint stage, consumers need only plead “sufficient factual allegation to raise a reasonable inference that [Freedom Mortgage] failed to follow the internal do-not-call list requirement mandated by the FCC under the TCPA.”
This may all sound like a bunch of legal mumbo jumbo. Let’s make it simple.
Congress intended that people shouldn’t be bombarded by unwanted telemarketing calls. Despite some very tough laws, these calls persist. In fact, FCC data show the problem is getting worse. Spoofing technology and third party call centers outside the jurisdiction of US courts has made the problem worse.
Adding to the problem are companies that think they can skirt the law by holding the public to an impossibly high standard. Although having a recording one of these calls is helpful, merely keeping a log is more than enough.
I Am Getting Unwanted Telemarketing Calls, What Can I Do to Make Them Stop?
We won’t take a case based on one call but if you can reasonably demonstrate that you received multiple calls and that the calls continued even after you asked them to stop, you may have a viable Telephone Consumer Protection Act case.
You may be eligible for damages of between $500 and $1500 per call. Obviously, if you are receiving these calls, keep a log as each call is a violation.
Because the Act has a legal fee provision, it is easier than ever to bring action against these callers.
For more information, visit our website for a wide variety of TCPA resources including or robocall / telemarketing information page and our industry specific page for unwanted mortgage company telemarking calls and contact attorney Brian Mahany online, by email at or by phone at 202-971-9791.
Work for a call center? We would love to speak with you – even anonymously – and learn more about what is going in the industry. Please contact attorney Mahany directly at 414-704-6731.
[Ed. Note: Mahany Law attorneys Brian Mahany and Tim Granitz serve as co-lead counsel for consumers in the class action lawsuit against Freedom Mortgage Company.
For additional coverage of this case, see today’s article in Law360.]