Radio Law Talk Segment
Robocalls: Charvat v. Carnival et al.
When we moved over to cell phones everyone believed that the annoying calls of telemarketers had finally been banished to our landlines or for some non-existent due to the lack of land lines. In the past year, it has been increasingly clearer however that our private cell phones are now under the siege of a new and relentless annoyance, robocalls. Over the past year Americans have been contacted by an estimated 29.3 billion unwanted telemarketing calls. While these calls are extremely annoying there are not only ways to avoid these calls but these calls may even be illegal due a recent case concerning a class action against Resort marketing group due to the calls violating the Telephone Consumer Protection Act.
FACTS (brief, 6 sentences):
The most recent case Charvat v. Carnival et al. Class action came about from persons who received pre-recorded telemarketing calls from a third-party travel agency Resort Marketing Group. These calls were made between July 2009 until March 2014 which offered free cruises to those is called from Royal Caribbean, Norwegian Cruise Line and Carnival. The outcome of the case was a settlement agreement reached in July which establishes a fund of $7 million and $12.5 million to pay those who received such calls. The claim of the law suit is that such calls constitute as a violation of the Telephone Consumer Protection Act. Charvat contends that the reason these calls violate the Telephone Consumer Protection Act since the making of these pre-recorded calls were made without express consent, the defendants deny all of the allegation made in the law suit and deny they did anything wrong.
I. Issue at hand is whether the unsolicited advertisements made to cell phones are in fact in violation of the Telephone Consumer Protection act which give rise to substantial penalties on companies that knowingly violate these telemarketing restrictions.
The main issue is whether such calls constitute as a violation of the Telephone Consumer Protection Act. The Telephone Consumer Protection Act of 1991 (TCPA) was intended to “protect the privacy interests of residential telephone subscribers by placing restriction on unsolicited, automated telephone calls to the home and to facilitate interstate commerce by restricting certain uses of facsimile (fax) machines and automatic dialers.” . This law was created federally since while states did create such laws they did not have jurisdiction over interstate calls and telemarketers were easily able to avoid state law restrictions by being located out of the state.
While it seems, this act should include such devices as cellphones, it is also clear that the statute intends to cover residential telephones and it is the issue of whether this act was meant to cover cell phones and if these calls were made within the conditions of a lawful advertisement.
The law makes it seem however the concern is not the device which is being reached by these unsolicited advertisements, rather that these unsolicited advertisements are meeting certain conditions to make these advertisements. This is clear since the TCPA makes it unlawful for “any person within the United States, or any person outside the United States if the recipient is within the United States. . . to use any telephone facsimile machine, computer, or other device to send, to telephone an unsolicited advertisement. Since the TCPA clearly uses the word telephone rather than residential line, it seems likely the act was meant to cover such devices as cell phones, especially since most Americans use their cellphones as personal lines. Since the law was intended to end such annoyances it seems clear that the statue cannot be read so closely and would naturally also protect devices such as cell phones from “junk telephone calls” which were the technological cousin of junk mail, which was a large focus of the TCPA when enacted.
The parties who advertise however may disagree to the TCPA being applied to such situations as Chavart v. Carnaval as defendants did when denying any fault in the class action. For one they may contend cell phones are not used solely for personal use in fact many are used for business, and other non-personal uses. Therefore, just as with e-mails, while we use them for our personal use, they are not excluded from receiving such advertisements since we often avail ourselves to such businesses through either providing our e-mails and numbers to win a contest or to get a discount and so on. This route of argument also leads to the such phone calls being within the conditions of the TCPA. In 2005 an amendment was added, known as the Junk Fax Prevention Act. This amendment adds that such advertisements would be within the condition if the unsolicited advertisement is from a sender with an established business relationship with the recipient. An established business relationship under the TCPA includes a relationship between a person or entity and a residential subscriber.
In the current situation, the advertising parties may argue that recipients of such phone calls were within this condition if they had done business with them, which can easily be done now on smart phones with a click of a button and possibly accidently agreeing to such phone calls to receive some sort of deal online. While the TCPA may clearly cover unsolicited phone calls to cell phones the question of whether these phone calls are within the conditions set by TCPA is in question due our fast pace and very connected world which may create a proper “established business relationship”.
LAW (with references, no need for blue book citations):
47 USCS § 227
DETAILED FACTS (tell the story):
The current case involves Philip Charvat v. Carnival Corporation specifically against the Resort Marketing Group. The Plaintiffs claim that Carnival, Royal Caribbean, and Norwegian Cruise Line authorized the third-party travel agency Resort Marketing Group (RMG) to make automated calls offering free cruises to individuals.
Plaintiff Philip Charvat claimed he received pre-recorded cruise line telemarketing calls from RMG. Philip Chavrat also claims that neither the cruise line companies nor RMG ever received express written consent from him allowing these groups to contact him in any manner. Due to this argument plaintiff claims that these calls violated the TCPA. In July 2017 U.S District Judge Andrea R. Wood granted preliminary approval of the cruise line telemarketing class action. This settlement requires the defendants create a fund which is between $7 million and 12.5 million dollars depending on how many claims are filed. This fund not only covers payments to qualified class members but also an incentive award for Charvat, costs of administering the settlement, and last but not least the Class’ court and attorney’s fees.
As long as class members submit timely and valid claims they may receive payments up to three calls per telephone number at $300 per call for the maximum of $900 per telephone number. Class members who wish to file a claim must file before November 3,2017. The class members whom are eligible to claim these benefits are those persons in the U.S who have owned, subscribed to, or used residential or cellular telephone numbers listed in RMG’s that mentioned either Carnival, Norwegian, or Royal Caribbean cruise lines between July 23, 2009 to March8, 2014. Persons who believe they may be party to this class action are able to check their phone numbers as the settlement administrator’s website to confirm if they are in fact a part of the settlement.
OTHER FACTS (interesting facts, related facts, trivia, etc.):
Ways to avoid such phone calls in general:
(1) Block all callers who are not contacts through do not disturb on i-phones, it will send such calls straight to voicemail.
(2) To check if the call is a scam google the number and it will notify if the call is a scam.
(3) Contact mobile provider to block such phone calls from your cell phone.
(4) Contact the FTC with any such issues & even sign up for free scam alerts at FTC at ftc./gov.scams to get the latest tips & advice.
(5) There are even apps which help stop scam/ unwanted calls.
- PrivacyStar (for Android) – uses a color-coded system to signal who is calling.
- Green: A caller who is not in your address boo & is not a known to be telemarketer or debt collector
- Yellow: A known telemarketer or debt collector
- Red: A telemarketer or debt collector on Privacy Star’s List of reported offenders
- Truecaller (i-Phone) – A free app , which only requires a little information’s and identifies scam calls.
- Nomorobo (i-Phone)- This app costs $1.99. This app differentiates between necessary robocalls and annoying robocalls. You can choose to either block them outright or have the calls ID them and send them straight to voicemail.
- PrivacyStar (for Android) – uses a color-coded system to signal who is calling.
ARTICLE LINKS (so we can print them out):
(1) The settlement administrator’s website: https://www.rmgtcpasettlement.com/Landing.aspx
MEDIA (less than a 2 minutes FUNNY sound bite. You can include a couple of options. We realize that for some topics there is not much):
You can Prank Robocalls! Roger Anderson a telecom professional who was annoyed by all the robocalls from telemarketers created software which converses with the robocalls in the most infuriating way possible.
Called the Jolly Roger Telephone Co (http://jollyrogertelephone.com/about/)
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