Collectors May Call Cell Phones with Autodialers, Prerecorded Messages

[debtcollector`]

FCC: Collectors May Call Cell Phones with Autodialers, Prerecorded Messages
January 7, 2008

A ruling released by the FCC late Friday allows debt collectors to use predictive auto-dialers and prerecorded messages in calls placed to consumer mobile phones.
by Burney Simpson and Patrick Lunsford
insideARM.com
January 7, 2008



Collectors may use predictive auto-dialers and prerecorded calls to contact consumers on their mobile phones, the Federal Communications Commission announced in a ruling handed down late Friday.

Prior to this ruling, the Telephone Consumer Protection Act (TCPA) had generally prohibited auto-dialer and prerecorded calls to a mobile phone unless there was prior consent by the consumer. The ruling goes into effect immediately and applies to collectors, debt purchasers, and creditors, according to collection industry trade group ACA International.

The decision is being viewed as a victory for collectors and the ACA as more consumers move to wireless-only communication. “This is wonderful news. The TCPA was instituted when there were about 50 cell phones in the country,” said Gary E. Wood, president of Collins Financial Services Inc. and debt purchasing trade association DBA International.

“This ends a tremendous amount of litigation over auto-dialer prohibition,” said Rozanne M. Andersen, executive vice president and general counsel at ACA. But Andersen cautioned, “This is not a 100 percent win, there are some remaining questions. But we are analyzing the ruling and providing members with details to ensure they abide by the ruling.”

Indeed, an attorney with a consumer rights organization noted that the creditor, debt purchaser and collector still have the burden of holding, or having access to, a record of the debtor’s proof of permission.

And keep in mind that “cell phone numbers turn over quickly. (An agency) may call the wrong person,” said Lauren K. Saunders, managing attorney of the National Consumer Law Center. “They need to ensure the number is still good for the right person.”

In addition, the FCC ruling applies only to the TCPA, not the FDCPA, and a collector could mistakenly violate one of its provisions if he isn’t careful, she said. “There are a lot of landmines that collectors could step on if they use this for broad-based permission,” said Saunders.

In the ruling, reached on Dec. 28, the FCC determined that autodialed and prerecorded calls made to wireless numbers provided by the called party in connection with an existing debt are made with the “express prior consent” by the called party.

ACA filed a petition with the FCC in October 2005 seeking clarification that the prohibition against autodialed or prerecorded calls to wireless telephone numbers did not apply to collection calls. The FCC ruling was a direct response to the ACA petition.

At issue was the “express prior consent” clause in the TCPA governing the use of wireless numbers. Due to the fee applied to users for incoming mobile calls, the TCPA had been previously interpreted as not granting consent for automated calls.

Providing a creditor with a cell phone number during a credit application “reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt,” the FCC wrote. Collectors may also use the mobile numbers if a consumer gives the number as an alternate contact.

Debt collectors have always been able to use predictive auto-dialers and rerecorded messages to reach traditional wire line numbers, and collectors have also been able to manually dial wireless numbers to reach consumers. But the combination of using those advanced call center technologies on wireless numbers was interpreted as forbidden under the TCPA.

In 2003, the FCC banned the use of auto-dialers and prerecorded messages for calls of any kind made to wireless numbers. The Commission was responding to what it called a “greater nuisance and invasion of privacy than live solicitation calls” in using wireless numbers which were gaining popularity. The fact that consumers were charged for the incoming calls punctuated the FCC’s finding.

[Fizzle1979]

I think this will end up hanging the collectors. Most cell phone companies provide detailed call logs with the invoice. So when a colelctor screws up and calls a debtor after they have requested them to stop, they will now have a record of it.

[Amerikaner]

the FDCPA is not affected...

Here is the entrie text of the FCC Ruling...

[url]http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-232A1.pdf[/url]

The ruling only applies to the TCPA. The FDCPA is still in effect and forbids collectors using any means to collect that cause you to incur a charge. Read: Cell Phones

[dcatz]

Originally Posted by Amerikaner:
The FDCPA is still in effect and forbids collectors using any means to collect that cause you to incur a charge. Read: Cell Phones

I always find this to be an interesting forum, but I don’t post here often and perhaps am not a well informed consumer. I’ve continued to return to this thread and I’m confused. There are undoubtedly professionals and laypersons who study the FDCPA more closely than I, and, before leaving again, I’d appreciate some clarification.

Your post seems to imply there is a blanket FDCPA prohibition against collectors calling cell phones. Is that right? If I’m reading it correctly, would you point me to the section? I’d like to study it.

What confounds me is that the attorney from the National Consumer Law Center doesn’t seem to go as far as you do on the subject. I don’t understand the reason for saying, “(An agency) may call the wrong person. They need to ensure the number is still good for the right person.”, if the reality is that they can’t call anyone under any circumstances. Why qualify the statement at all? I’m sure that you see my problem.

In fact, I have a similar problem with the whole FCC ruling. If the FDCPA proscribes calls to cell phones, without exception, I don’t understand why the Commission entertained the ACA petition at all. I don’t understand why the response wasn’t something like, “Well, you can’t call anyway, so issues such as predictive dialers and express prior consent are irrelevant. We don’t purport to preempt the FDCPA and that Act rendered the larger question moot”.

If no calls are permitted, why enumerate meaningless pre-conditions to not making calls?

I read the ruling to which you linked and cannot see any regulatory value for the following footnote:
37 We encourage creditors to include language on credit applications and other documents informing the consumer that, by providing a wireless telephone number, the consumer consents to receiving autodialed and prerecorded message calls from the creditor or its third party debt collector at that number.
Were they just goofing because they didn’t add (“even if they can’t ever do it anyway, hee, hee”)? I never suspected that those people had that wry sense of humor. Costly proceeding for a joke.

Just looking for a statutory cite and will appreciate the anticipated help. Always learning.

[Amerikaner]

Originally Posted by dcatz

I always find this to be an interesting forum, but I don’t post here often and perhaps am not a well informed consumer. I’ve continued to return to this thread and I’m confused. There are undoubtedly professionals and laypersons who study the FDCPA more closely than I, and, before leaving again, I’d appreciate some clarification.

Your post seems to imply there is a blanket FDCPA prohibition against collectors calling cell phones. Is that right? If I’m reading it correctly, would you point me to the section? I’d like to study it.

What confounds me is that the attorney from the National Consumer Law Center doesn’t seem to go as far as you do on the subject. I don’t understand the reason for saying, “(An agency) may call the wrong person. They need to ensure the number is still good for the right person.”, if the reality is that they can’t call anyone under any circumstances. Why qualify the statement at all? I’m sure that you see my problem.

In fact, I have a similar problem with the whole FCC ruling. If the FDCPA proscribes calls to cell phones, without exception, I don’t understand why the Commission entertained the ACA petition at all. I don’t understand why the response wasn’t something like, “Well, you can’t call anyway, so issues such as predictive dialers and express prior consent are irrelevant. We don’t purport to preempt the FDCPA and that Act rendered the larger question moot”.

If no calls are permitted, why enumerate meaningless pre-conditions to not making calls?

I read the ruling to which you linked and cannot see any regulatory value for the following footnote:
37 We encourage creditors to include language on credit applications and other documents informing the consumer that, by providing a wireless telephone number, the consumer consents to receiving autodialed and prerecorded message calls from the creditor or its third party debt collector at that number.
Were they just goofing because they didn’t add (“even if they can’t ever do it anyway, hee, hee”)? I never suspected that those people had that wry sense of humor. Costly proceeding for a joke.

Just looking for a statutory cite and will appreciate the anticipated help. Always learning.

Well the thing is there's not any specific statutory cite I can point to you and say "there ya go". The ruling applies to TCPA violations. Many pro se litigious consumers threaten to sue a collector based on the TCPA, NOT the FDCPA. The FDCPA is unchanged. While it does not specifically say "cell phones are not allowed to be called"... Section 808 (Unfair practices) states that a debt collector can not :

(5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees.

. Note that cellular phone communication specifically is not addressed. But "causing charges to be made".... is. Also, most cell phone plans, between the hours of 8 am and 9 pm are considered daytime minutes...and most cell phone plans charge customers for this airtime.

That being said - it's the FDCPA which needs some updating. And also, simply notifying a debt collector that "hey, you're calling a cell phone, and I do not authorize you to do so" should be enough to negate further calls. Or, one could just as easily say "hey, I'm recording this in the interest of accurate correspondence", and if the collector doesn't like that, well then that's his or her fault. Not the consumer's.

Like I said, it's not cut-and-dried. it may not even be a "true" violation of the FDCPA but rather a "technical" one.

[dcatz]

Shucks. That’s the section that I thought that you might point to, and that does seem to put a crimp in any absolute statements about cell phones. It seems to me that there was another, similar discussion about cell phones a few months ago with seemingly unconditional statements. The section didn’t appear to me to be quite as helpful as suggested at that time. I thought something might have changed. Apparently not.

Actually, while the former discussion was between other members, I had trouble with the reasoning then as well. Not only is the section silent on “cellular phone communication”, I would respectfully disagree with your statement that “causing charges to be made” is what is addressed. Now, if you had said “causing charges to be made . . . by concealment of the true purpose of the communication”, you would have had no disagreement, because the proscriptive statement ends with that clear prohibition. Not cause charges; cause charges by concealment of the true purpose. No matter how many times I read it, the language doesn’t change.

I agree that the FDCPA needs to be updated. Pity the poor collector, who is trying to comply, and even the “educated consumer” and the “well informed consumer” don’t agree on the significance of the ruling. One believes that the FDCPA is unaffected; therefore no cell phone calls. The other thinks that the ruling is good because “now when the collector calls after being told to stop, there will be a log” (implying that calls made before being told to stop are permissible). Apparently, the collector gets a choice: (1) no cell calls because it causes an expense, (2) no cell calls if the debtor said stop but ok until then (unless it’s also harassing), (3) cell calls so long as non-harassing and made during proper hours (because the FDCPA is unaffected by TCPA) or (4) cell calls that are non-harassing and made during proper hours, but only if there is express prior consent (because FDCPA is construed to co-exist with TCPA, but nobody has taken the question up on appeal as yet). Yeah, I think some updating and clarification would be a good thing.

If that collector makes a call that’s a “technical” violation, rather than a “true” one, and is sued by the least sophisticated consumer who doesn’t know FDCPA from FCRA, FACTA, TCPA, G-L-B, HIPAA, the Patriot Act and the local leash laws, does he run the risk of a “technical” fine, instead of a “true” one? Sounds like “being sorta pregnant”. I never understood that one either, but thanks for the clarification.