Robo-Calls and the Federal and State Telephone Consumer Protection Acts

The Federal Telephone Consumer Protection Act (TCPA)

The Telephone Consumer Protection Act was passed to try and combat the widespread robo-calls that have invaded every house and cell phone.

Except for some very limited circumstances such as emergencies or a person’s prior express consent, the Telephone Consumer Protection Act bans all phone calls that “use an artificial or prerecorded voice to deliver a message.”

In the case of cell phones, the TCPA goes even further. In addition to artificial prerecorded messages, the TCPA bans the use of autodailers, unless there has been prior express consent given by the called party.

Damages Under the TCPA

Unlike some consumer protection laws, when they passed the TCPA in 1991, Congress decided to put some real teeth into the statute. For every violation, a person or entity may file a lawsuit to recover the greater of the actual monetary loss, or $500 for each violation. Further, if the court finds that the violations were willful or knowing, then the court may award in its discretion up to 3 times that amount. In other words, a person could potentially receive $1,500 for each illegal phone call.  The TCPA does not have an attorney’s fees provision.

The Maryland Telephone Consumer Protection Act (here).

Perhaps feeling that the federal TCPA did not go far enough, in 2004 Maryland passed legislation stating that if a person violates the federal TCPA, then that person has also violated the Maryland Telephone Consumer Protection Act. Further, any violation of the MTCPA is a per se violation of the Maryland Consumer Protection Act (MCPA).

Damages under the MTCPA (here).

Separate and apart from the relief under the federal statute, the victim under the Maryland statute can recover the greater of actual damages sustained as a result of the violation, or $500, plus reasonable attorneys fees. Like the federal statute, each phone call is a separate violation, but unlike the federal statute, there is no potential trebling of damages.

The Bottom Line: Broad Prohibitions With Significant Statutory Damages

The bottom line is that both Congress and the Maryland legislature have given the citizens of Maryland a powerful deterrent to telemarketing robo-calls, and victims of these illegal practices could potentially recover up to $1,500 in statutory damages per illegal phone call under the federal act, or $500 in statutory damages plus reasonable attorneys fees under the Maryland act.

Although the issue has not been squarely decided, both state and federal judges in Maryland have expressed skepticism about whether a consumer could recover statutory damages under both the federal and the state statute for the identical violation of the TCPA.  (See, Lynn v. Monarch Recovery Mgmt., Inc., 953 F. Supp. 2d 612, 622 (D. Md. 2013)).