Author Topic: Am I required to ask a TCPA offender to stop contacting me?  (Read 246 times)

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tijuanasam

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For reasons unknown...I've recently started receiving unsolicited spam SMS/text messages. I've probably received 10-12 over the last couple months from a business that, from a little research, seems to be a serial offender.

So...if I decide to sue, they're undoubtedly going to say that they 'might' agree to settle for $500, based on the 1st message...but as far as asking for damages for all 12, they're most certainly going to argue..."you could've simply just asked us to stop texting you," taking the position that I had some type of 'duty' to stop their continued marketing.

Was curious, if it actually were to ever get in front of a judge, the likelihood that he would buy their argument & simply award $500?

And, before people ask, no...I haven't given this number out as a contact before & it's not associated w/any; accounts, contest entries, etc. I made the mistake of answering a few ADAD calls & now am seemingly a target of rogue marketers.

kevinmanheim

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #1 on: March 23, 2017 10:04:47 AM »
If you don't revoke consent, your opponent can argue, often with great success, that you failed to mitigate.

I would send them a return text message next time they text. It would read: Don't send me texts.

I would not use the word STOP in the return message.

aaabbb

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #2 on: March 23, 2017 10:52:46 AM »
Quote
Was curious, if it actually were to ever get in front of a judge, the likelihood that he would buy their argument & simply award $500?

No chance. If you gave them consent to contact you then yes, you have to revoke consent. If not, the judges hands are tied and he has to award $500 per call or text. However, revoking consent gives you a good argument for treble damages if they continue to call.

The FCC has already ruled on this in favor of consumers. Callers must obtain prior express written consent to place autodialed calls/texts. An electronic signature is sufficient but the telemarketer MUST inform you that your consent to receive calls is not a requirement to receive services from the company. Check the FCC rulings for October 2013 and July 2015.

Bruno the JDB Killer

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #3 on: March 23, 2017 12:53:02 PM »
You don't have to revoke consent if you never gave it. It's their burden to prove you did. Your burden is to prove they used an autodialer.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

HarryC

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #4 on: March 23, 2017 02:13:36 PM »
Your burden is to prove they used an autodialer.

Which I learned last year can be more difficult than you might think.
I'm not a lawyer and I'm not even very smart.  You'd be well advised not to listen to anything I have to say.

tijuanasam

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #5 on: March 23, 2017 05:10:35 PM »
If not, the judges hands are tied and he has to award $500 per call or text. However, revoking consent gives you a good argument for treble damages if they continue to call.

Ok...this idea actually intrigues me a little. I'd always thought judges had a large amount of leeway in situations like this & could, based on their 'judgment' of the situation/case, award an amount of damages that they felt was appropriate...w/the statutory amount as their 'guide' so to speak. In a situation where the damages are statutory...are their hands tied & they must award them?

tijuanasam

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #6 on: March 23, 2017 05:12:04 PM »
The FCC has already ruled on this in favor of consumers. Callers must obtain prior express written consent to place autodialed calls/texts. An electronic signature is sufficient but the telemarketer MUST inform you that your consent to receive calls is not a requirement to receive services from the company. Check the FCC rulings for October 2013 and July 2015.

And wow...great material here, thanks for sharing this  :drinking:

aaabbb

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #7 on: March 23, 2017 10:22:49 PM »
Ok...this idea actually intrigues me a little. I'd always thought judges had a large amount of leeway in situations like this & could, based on their 'judgment' of the situation/case, award an amount of damages that they felt was appropriate...w/the statutory amount as their 'guide' so to speak. In a situation where the damages are statutory...are their hands tied & they must award them?
They have leeway to award in between $500 and $1500. They cannot award less than $500 or more than $1500 but there are actually two private rights of action in the TCPA so you can ding them twice per violation and collect up to $3,000 per call; once per violation according to section b(3) and once per call according to section c(5).

Note that for section c(5) you cannot rack up multiple violations on a single call. 1 call = 1 violation, no matter how many regulations were violated on that call.

ghost

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #8 on: March 26, 2017 11:24:11 PM »
Unsolicited text messages should be easy to track and sue on. I wouldn't take anything less than $1500 per call/text for them. As long as you can identify the telemarketer, you should be in good shape. There is no duty to mitigate damages in a TCPA context and multiple courts and the FCC have said so. You aren't required to sue on the first call/text or notify them in any way.

Sure, you could have said "stop texting me", but they could have always just followed the law and there is no obligation for you to tell them anything.
Lets do this

LightBearer1307

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #9 on: Yesterday at 12:05:23 AM »
If you don't revoke consent, your opponent can argue, often with great success, that you failed to mitigate.

I would send them a return text message next time they text. It would read: Don't send me texts.

I would not use the word STOP in the return message.


A principle of equity cannot be used to avoid an obligation imposed by a statutory mandate.



A Plaintiff in a TCPA action has absolutely no duty to mitigate damages in any regard.

See- Holtzman v. Turza, No. 08 C 2014, 2010 WL 3076258, at *5 (N.D.Ill. Oct. 29, 2010); Fillichio v. M.R.S Associates, Inc., No. 09-612629-CIV, 2010 WL 4261442, at *5 (S.D.Fla. Oct. 19, 2010); State ex rel. Charvat v. Frye, 114 Ohio St.3d 76, 868 N.E.2d 270, 275 (2007); Manuf. Auto Leasing, Inc. v. Autoflex Leasing, Inc., 139 S.W.3d 342, 347 (Tex.Ct.App.2004); Onsite Computer Consulting Svs., Inc. v. Dartek Computer Supply Corp., No. 05AC-000108 I CV, 2006 WL 2771640, at *4 (Mo.Cir. May 17, 2006); Jemiola v. XYZ Corp., 126 Ohio Misc.2d 68, 802 N.E.2d 745, 750 (2003); Powell v. West Asset Management, Inc.  (Dist. Court, NC Illinois 2011)

In State ex rel. Charvat v Frye, the court held-

“Finally, notwithstanding Judge Frye’s argument to the contrary, his reliance on the common-law principle of volenti non fit injuria (a person is not wronged by that to which he consents) and that an injured party must mitigate his damages is misplaced. There is no duty to mitigate in TCPA cases. See, e.g.,Manufacturers Auto Leasing, Inc. v. Autoflex Leasing, Inc.(Tex.App.2004), 139 S.W.3d 342, 347-348 (defendant in TCPA case did not have duty to mitigate its damages by using statutory method to request defendant to stop transmitting unsolicited facsimile ads instead of simply collecting the ads and suing).”



See- State Farm v. Superior Court (1996) 45 Cal. App. 4th 1093, 1102), “principles of equity cannot be used to avoid a statutory mandate.”; Ghory v. Al-Laham (1989) 209 Cal. App. 3d 1487, 1492 (The defense was stricken from the pleadings); Jiagbogu v. Mercedes-Benz USA, 118 Cal. App. 4th 1235, 1244 (Cal. App. 2d Dist. 2004), “principles of equity [cannot] be used to avoid a statutory mandate.”



Every single court that I know of, that has ever been confronted with the issue of "failure to mitigate" [a principle of equity] in regards to it being offered as a defense against a statutory obligation, has rejected the idea that a principle of equity can be used to avoid a statutory mandate. The courts have not rejected failure to mitigate have been overturned on appeal.

CleaningUp

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #10 on: Yesterday at 03:11:01 AM »

I wouldn't take anything less than $1500 per call/text for them.
.

You don't necessarily get to decide what you re going to "take".

Let's try too keep expectations in line with reality.


Bruno the JDB Killer

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #11 on: Yesterday at 12:52:21 PM »
Mitigation and / or contributory negligence is used almost exclusively in personal injury cases. In my state, it is written right into the statute that it can't be used for anything else. That can include some types of insurance claims too.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

rebuilder2006

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #12 on: Today at 07:14:19 PM »
Mitigation of damages is not applicable to the statutory damages under the TCPA.

Mitigation is not a defense to liability - it affects only the amount of damages after liability is established.

Because TCPA damages under 227(b) are fixed by statute, mitigation can not apply.

In addition, mitigation applies to continuing damages flowing from a wrongful act, and calls (or faxes) made in violation of the TCPA are independently wrongful acts.

Bruno the JDB Killer

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Re: Am I required to ask a TCPA offender to stop contacting me?
« Reply #13 on: Today at 08:01:55 PM »
Mitigation supposes an obligation by one party to take actions to prevent his own damages. I.E., you sit in the yard having a soda, and watch the house burn down rather then call the fire department. The insurance company is going to have a problem with that, because you could have acted in your own interest and failed to do so.

No such obligation exists when people are victimizing you by violating the law. The obligation is theirs....to follow the law. That's like blaming the bank teller who handed you the money when you robbed a bank.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

 

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