A victory in the fight against robocalls

Narberth lawyer Cary L. Flitter convinced an appeals court that Dell Financial Services should stop robocalls to his client's cellphone.
Narberth lawyer Cary L. Flitter convinced an appeals court that Dell Financial Services should stop robocalls to his client's cellphone. (JEFF GELLES / Staff)
Posted: October 21, 2013

Ashley Gager isn't alone in being driven to distraction by unwanted, potentially costly robocalls to her wireless phone. But she's remarkable in one way that should cheer cellphone owners everywhere: She fought back against a flurry of automated calls and recently won clear support from a federal appeals court in Philadelphia.

Gager was targeted for a particular reason - she owed money to Dell for a computer she'd failed to pay off. But her case highlights one aspect of a problem that bedevils anyone who picks up a phone and hears an unwanted recording or a robocaller's telltale "dead air" - calls that, since last week, are subject to stronger consumer protections from the Federal Communications Commission.

The Honesdale, Pa., woman's troubles began several years ago, after she bought a computer with a loan from a Dell financial subsidiary, according to her Narberth lawyer, Cary L. Flitter.

Gager paid promptly for the first couple of years, before she was forced into bed rest by a problem pregnancy. After three months out of work, she began to fall behind.

To try to collect, Dell Financial Services turned to a high-tech tool that's become central to many businesses and especially to creditors: automated calls from so-called robotic or predictive dialers.

The calls to Gager played recorded messages that demanded she pay up. But the federal protections she invoked, under 1991's Telephone Consumer Protection Act (TCPA), don't distinguish between recorded messages and robocalls where a human eventually picks up. Instead, they bar nearly all such calls to cellphones.

A key exception covers calls where the recipient has given "prior express consent" to receiving automated calls - something Dell contends Gager did when she listed her cell number on a credit application.

But Gager couldn't pay Dell's bills - she eventually declared bankruptcy - and viewed the repeated calls as harassment. At a lawyer's suggestion, she wrote to Dell, asking that it stop. When that didn't work - she counted more than 40 calls during the next three weeks - the lawyer filed suit under the TCPA, which authorizes damages of $500 per call and triple that for willful violations.

A federal judge initially sided with Dell, saying Gager had no right to revoke her consent. Flitter took the case to the U.S. Court of Appeals for the Third Circuit, which reversed the suit's dismissal in a 3-0 ruling. Last month, the court denied Dell's plea for a rehearing.

Dell's attorney, Duane Morris partner Anthony L. Gallia, declined to discuss the case. In oral arguments, Gallia suggested that Gager had only had ways to stop the robocalls: paying up, or bankruptcy. Dell's basic position was that Gager's agreement to accept robocalls was an irrevocable condition of her loan.

The appeals court disagreed. Although the law doesn't specify a right to revoke consent, Judge Jane R. Roth said such a right exists in common law and is supported by earlier rulings on the TCPA, calling it "a remedial statute" meriting a broad reading.

Flitter says the court properly balanced individual rights against technology that allows a company, with or without justification, to bombard a consumer's cellphone - perhaps making it impossible to receive other calls, or triggering costly overage charges.

"Ashley Gager got 40 calls after she told them to stop. We have clients that have gotten 500 calls," Flitter says. "What purpose other than harassment is there?"

Consumers frustrated by other kinds of robocalls got a boost last week, when new FCC rules extended the "prior express consent" standard to landlines as well as cellphones. Marketers can no longer claim a "prior business relationship" as all the justification they need to deliver recorded messages or say that consent was given orally. Though it won't help stop lawless robocall spammers, it will help.

The new rules also won't stop creditors from calling landlines to collect debts, and nothing stops them from using people to make such calls to any phone. But the Third Circuit, in a small way, has remedied one of the unintended consequences of robocall technology: the ability to use cellphones as a cudgel rather than a communications device.


215-854-2776 @jeffgelles


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