Attempted Calls Likely Actionable Under TCPA

Summary

While the FCC has not addressed whether attempted calls constitute violations of the TCPA, a few courts have ruled that attempted calls are actionable and the called party is entitled to statutory damages.

Article

The TCPA prohibits calls made to any residential line or cell phone using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party.  But what happens if the called party receives an attempted call, i.e., a call placed using a prerecorded voice or an automatic telephone dialing system, which is completed to a number but is not answered by a live person or the call goes to voicemail?

While the FCC has not addressed whether attempted calls violate the TCPA, the cases that have ruled on the issue have determined that attempted calls are actionable and the called party is entitled to statutory damages.

In Soppet v. Enhanced Recovery Co., LLC, plaintiffs alleged defendant debt collector sent voicemails to their cell phones without their prior express consent.  The court held that the TCPA prohibits not only answered calls, but also calls that leave voicemail messages because the calls may consume minutes and charge the called party.  Therefore, plaintiffs were entitled to statutory damages for all calls received from defendant regardless of whether a message was left or the calls went unanswered.

In Fillichio v. M.R.S. Assocs., defendant debt collector obtained plaintiff’s cell phone number from a third party and made calls without plaintiff’s prior express consent.  Although it was undisputed the calls were made, defendant argued plaintiff was not entitled to receive statutory damages for calls where no message was left because the plaintiff was unaware of the unanswered calls.  The court held the TCPA does not require a plaintiff be aware of the calls and “the prohibition in the TCPA applies to phone calls placed to cellular telephone numbers even if the intended recipient does not answer the calls. It is the mere act of placing the call that triggers the statute.”

Similarly, in Powell v. West Asset Mgmt., plaintiff alleged that defendant debt collector called his cell phone with an automatic telephone dialing system without his prior express consent.  While the parties ultimately settled, the court found on a ruling for mitigation of damages that although plaintiff did not answer any of the calls, the unanswered calls were still violations of the TCPA that created a private cause of action under which plaintiff could recover.

Finally, in Mais v. Gulf Coast Collection Bureau, Inc., plaintiff alleged that defendant debt collector called him with an automatic telephone dialing system without his prior express consent after plaintiff failed to pay a bill to a third party.  Consistent with the other cases, the court found plaintiff was entitled to statutory damages for all calls he received from defendant regardless of whether a message was left or the calls went unanswered.  However, the court held plaintiff could not recover for 15 calls that did not technically go through to plaintiff.  Those calls were not actionable under the TCPA and “only dialed calls that successfully went through to Plaintiff’s number will be counted.”  Thus, calls that technically fail and do not reach the called party are likely not actionable.

Conclusion:

While the FCC has not ruled on whether attempted calls are actionable under the TCPA, courts have found that an attempted call constitutes a violation of the TCPA.  However, calls that technically fail and do not reach the called party, as described in Mais, are likely not actionable as a private cause of action against the caller under the TCPA.