seeking clarification: auto-dialer rules by collection agencies

[Jen23514]

I know the 1991 Telephone Consumer Protection Act prohibited the use of auto-dialers.

 

Then the ACA tried to fight back against it.

 

What is the final ruling on this? links?

[jack1212]

I had never even heard of that...

 

interesting.

[GEORGE]

95%+ of the CA calls I have got have been auto-dialers

 

Is there some problem with them???

 

Too bad the calls are not for anybody here

 

I would send another C&D...but why do I need to waste MORE money on BOGUS CALLS

[Jen23514]

Jack, IIRC they are exempted, but I'm really wanting to find clarification on this.

 

 

Hey George, nice to see you're not ignoring me anymore.

[jack1212]

would this be on PACER?

 

i dont have an account there..

[Jen23514]

found this.... close to what I was looking for, but not quite

 

TELECOMMUNICATIONS CONSUMER

PROTECTION ACT & CLASS ACTION

FAIRNESS ACT (JURISDICTION FOR FCC

REVIEW & CLASS ACTION AMENDMENT)

Leckler v. Cashcall, 2008 WL 5000528 (N.D. Cal. Nov. 21,

2008)

 

Defendant, a money lender, would often use automatic

telephone dialing systems (autodialiers) to place calls to the

cell phone numbers of borrowers who were late in paying

their debts. The plaintiffs brought suit, alleging that such

practices violated the Telecommunications Consumer

Protection Act (TCPA).

 

In a previous proceeding in the

same court, both parties filed cross-motions for summary

judgment. The defendant cited to a declaratory ruling by

the Federal Communications Commission (FCC) which

stated that autodialed and prerecorded message calls to

wireless numbers did not violate the TCPA when the

called party provided the number to the creditor in

connection with an existing debt.

 

The court found that

the FCC's ruling was contrary to the plain meaning of the

TCPA and was not entitled to Chevron deference. The

court held that the defendant violated the TCPA when it

called the plaintiffs' cell phones using an autodialer. The

defendant then filed a motion to vacate the court's prior

order and dismiss the case. The defendant, citing for the

first time to the Hobbs Act, stated that federal courts of

appeal have exclusive jurisdiction over all final FCC orders

and that the district court did not have jurisdiction to

review the FCC's declaratory ruling.

 

The plaintiff and the

court agreed that the court was mistaken in ruling on the

FCC's order and the court's previous ruling was vacated.

The defendant next argued that the court could not retain

jurisdiction over any part of the case because it admitted it

lacked jurisdiction under the Hobbs Act. The court

believed that the defendant's argument went too far and

held that the Class Action Fairness Act (CAFA) was the

basis for the suit to remain in district court. The plaintiff

then moved to amend their complaint to allow for a

named plaintiff whose claims would not be precluded by

the FCC's ruling. The individual the plaintiffs sought to

substitute was called by the defendant because she was

listed as a reference for a borrower, and was not the actual

borrower. Therefore, the potential plaintiff would not

have voluntarily given her information to the defendant

when applying for credit. The court held that allowing

such a substitution would fundamentally change the

lawsuit by seeking recovery for people listed as references

of borrowers, instead of the borrowers themselves.

Therefore, finding that there were no plaintiffs remaining

with viable claims, the court dismissed the lawsuit without

prejudice.

[pryan67]

well, I'd certainly fils a 1088 with the FCC

 

https://esupport.fcc.gov/form1088/consumer.do

 

TCPA seems pretty straightforward...ANY autodialer is prohibited from dialing a cell phone...see 227 ( (1) a iii

 

http://www.law.cornell.edu/uscode/html/usc...27----000-.html

[Jen23514]

everything I read suggests there is an FCC exemptions for debt collectors.... but I can't find where the FCC wrote that up, if its still in effect, or if this CA is breaking the TCPA.

 

I usually don't have this much trouble researching what I want. This is a little frustrating.

[nyrfann]

Jack, IIRC they are exempted, but I'm really wanting to find clarification on this.

 

 

Hey George, nice to see you're not ignoring me anymore.

Sell out

 

Jen23514 in now being ignored by NYRFann

Edited January 13, 2009 by nyrfann

[Jen23514]

Jen23514 in now being ignored by NYRFann

 

due to disappointment and shock and a broken heart.... Jen23514 faints and withers away.....

Edited January 13, 2009 by Jen23514

[centex]

well, I'd certainly fils a 1088 with the FCC

 

https://esupport.fcc.gov/form1088/consumer.do

 

TCPA seems pretty straightforward...ANY autodialer is prohibited from dialing a cell phone...see 227 ( (1) a iii

 

http://www.law.cornell.edu/uscode/html/usc...27----000-.html

 

Except that many credit card agreements contain language that expressly convey consent to call the cell phone IF the consumer has provided the number OR CALLED FROM the number...and since a third-party acquires the same rights as the original creditor upon placement or sale, the consent carries to the third party.

[EastRidge]

well, I'd certainly fils a 1088 with the FCC

 

https://esupport.fcc.gov/form1088/consumer.do

 

TCPA seems pretty straightforward...ANY autodialer is prohibited from dialing a cell phone...see 227 ( (1) a iii

 

http://www.law.cornell.edu/uscode/html/usc...27----000-.html

 

Except that many credit card agreements contain language that expressly convey consent to call the cell phone IF the consumer has provided the number OR CALLED FROM the number...and since a third-party acquires the same rights as the original creditor upon placement or sale, the consent carries to the third party.

I saw (shredded) an offer. Can't quote the language

at this late date, but the idea was, "consent ... or at

any number where we have reasonable expectation

that you might be present." (Not just the numbers

that I give them ... anything they can connect to my

name.) Legality is another question, but the letter of

that contract says they can do it. At work, at Mom's

house, anywhere I might be found.

 

Lots of stuff lurks in the fine print these days.

 

ER

[pryan67]

well, I'd certainly fils a 1088 with the FCC

 

https://esupport.fcc.gov/form1088/consumer.do

 

TCPA seems pretty straightforward...ANY autodialer is prohibited from dialing a cell phone...see 227 ( (1) a iii

 

http://www.law.cornell.edu/uscode/html/usc...27----000-.html

 

Except that many credit card agreements contain language that expressly convey consent to call the cell phone IF the consumer has provided the number OR CALLED FROM the number...and since a third-party acquires the same rights as the original creditor upon placement or sale, the consent carries to the third party.

 

 

 

unfortunately for the "creditors", their agreement doesn't override TCPA....

 

 

now...if they were to hand dial the number...MAYBE they could make that argument....and if they're lucky, they'll get a judge that will agree with them....

 

 

but I wouldn't put money on it

[jack1212]

well, I'd certainly fils a 1088 with the FCC

 

https://esupport.fcc.gov/form1088/consumer.do

 

TCPA seems pretty straightforward...ANY autodialer is prohibited from dialing a cell phone...see 227 ( (1) a iii

 

http://www.law.cornell.edu/uscode/html/usc...27----000-.html

 

Except that many credit card agreements contain language that expressly convey consent to call the cell phone IF the consumer has provided the number OR CALLED FROM the number...and since a third-party acquires the same rights as the original creditor upon placement or sale, the consent carries to the third party.

 

 

 

unfortunately for the "creditors", their agreement doesn't override TCPA....

 

 

now...if they were to hand dial the number...MAYBE they could make that argument....and if they're lucky, they'll get a judge that will agree with them....

 

 

but I wouldn't put money on it

 

My argument would be that the dialer didnt program itsself. A human had to program it in.

[pryan67]

well, I'd certainly fils a 1088 with the FCC

 

https://esupport.fcc.gov/form1088/consumer.do

 

TCPA seems pretty straightforward...ANY autodialer is prohibited from dialing a cell phone...see 227 ( (1) a iii

 

http://www.law.cornell.edu/uscode/html/usc...27----000-.html

 

Except that many credit card agreements contain language that expressly convey consent to call the cell phone IF the consumer has provided the number OR CALLED FROM the number...and since a third-party acquires the same rights as the original creditor upon placement or sale, the consent carries to the third party.

 

 

 

unfortunately for the "creditors", their agreement doesn't override TCPA....

 

 

now...if they were to hand dial the number...MAYBE they could make that argument....and if they're lucky, they'll get a judge that will agree with them....

 

 

but I wouldn't put money on it

 

My argument would be that the dialer didnt program itsself. A human had to program it in.

 

 

The same could then be said about ANY autodialer calls....including the others that are covered under TCPA (such as sales calls, etc)

[ElderGeek]

My argument would be that the dialer didnt program itsself. A human had to program it in.

 

I'd tend to agree with Jack on that...

 

The way I interpret it, CA's that use an autodialer to call numbers stored from their own customer

contact database are excmpted because their automated dialing equipment doesn't meet the test

of an automated dialing system as defined in 227 ( A) (1):

 

(1) The term “automatic telephone dialing system†means equipment which has the capacity—

(A ) to store or produce telephone numbers to be called, using a random or sequential number generator; and

(B ) to dial such numbers.

 

Since they are neither storing or producing the numbers to be called at random or

using a sequential number generator (a la the old "Wargames dialer" analogy), ther methodology

doesn't qualify as an "automatic dialing system" for the purposes of the statute.

 

Therefore, since their methodology doesn't meet the test of 227 (A) (1), then the restrictions

stated in 227 ( B ) (1) a iii don't apply.

 

The one potentially large loophole in this, in my opinion, would be that they use the term

"Automated dialing system" in their definitions in 227 (A) (1), but then fail to *use* that

terminology for the rest of the statute, using "Automated dialing equipment" instead. Perhaps

that may be the "out", since the literal term used in the statute isn't specifically narrowed in scope?

[pryan67]

good point...but then that would also exempt virtually all telemarketers...since they don't use random number generators....but rather pre exisiting phone lists

 

 

but also, look at this:

 

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice—

 

 

 

specifically noting the OR after the word "system"

 

 

 

and also this...for residential lines:

 

( to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B );

[radi8]

FCC's interpretation of TCPA was changed on Dec. 28 2008, as a result of an inquiry in 2005 from the ACA.

 

the FCC ruled that autodialed and prerecorded calls made to cell numbers provided by the called party in connection with an existing debt are made with the “express prior consent†of the called party.

They cannot call your cell phone if you did not provide them the number directly- but if you did, (application and "contact info" form on their web site are common ways) they can now call you.

[Dolemite_73]

FCC's interpretation of TCPA was changed on Dec. 28 2008, as a result of an inquiry in 2005 from the ACA.

 

the FCC ruled that autodialed and prerecorded calls made to cell numbers provided by the called party in connection with an existing debt are made with the “express prior consent†of the called party.

They cannot call your cell phone if you did not provide them the number directly- but if you did, (application and "contact info" form on their web site are common ways) they can now call you.

At any time, this "expressed prior consent" can be rescinded. I would suggest adding the following line to your DV's:

 

"It's is inconvenient to call me at (XXX) XXX-XXXX at any time. You will contact me via US Mail."

 

Expressed prior consent is now gone and the CA can not call you on your cell phone. If they do, $500 dollar violation for each subsequent call. And per the TCPA, treble damages are allowed for willful violations. You think after receiving a letter rescinding expressed prior consent, any subsequent call could be willful? I do. And there is no error defense either. You call, you pay.

 

Just another hammer to nail them with.

Edited January 14, 2009 by Dolemite_73

[pryan67]

good point about the limited C&D Dolemite...add a nail to their coffin....in addition to the FDCPA violation if they call...

[Dolemite_73]

good point about the limited C&D Dolemite...add a nail to their coffin....in addition to the FDCPA violation if they call...

 

A potential $2,500 nail in their coffin. That is for one phone call. And if you live in a state (like I do) with their own TCPA, we are talking some serious bucks. Huge leverage.

Edited January 14, 2009 by Dolemite_73

[Jen23514]

FCC's interpretation of TCPA was changed on Dec. 28 2008, as a result of an inquiry in 2005 from the ACA.

 

the FCC ruled that autodialed and prerecorded calls made to cell numbers provided by the called party in connection with an existing debt are made with the “express prior consent†of the called party.

They cannot call your cell phone if you did not provide them the number directly- but if you did, (application and "contact info" form on their web site are common ways) they can now call you.

 

thank you. that is what I was looking for

[Jen23514]

FCC's interpretation of TCPA was changed on Dec. 28 2008, as a result of an inquiry in 2005 from the ACA.

 

the FCC ruled that autodialed and prerecorded calls made to cell numbers provided by the called party in connection with an existing debt are made with the “express prior consent†of the called party.

They cannot call your cell phone if you did not provide them the number directly- but if you did, (application and "contact info" form on their web site are common ways) they can now call you.

 

 

I ran across this today confirming Radi's post:

 

http://www.lathropgage.com/files/Publicati...0Collectors.pdf

[Dolemite_73]

Something I found today. All pre-recorded messages, be they with or without expressed prior consent, MUST meet the following criteria:

 

At the beginning of the message, all allowable prerecorded messages must state the identity of the business, individual, or other entity that is responsible for initiating the call. During or after the message, the caller must give the telephone number (other than that of the automatic dialing system or prerecorded message player that placed the call) of the entity responsible for the call.

 

About to test this on a telemarketer. The putz claimed we had a business relationship. IF he can prove that, it matters not. His messages does not meet the FCC requirement above. And I have all of these messages recorded.

 

Feel free to use the above on CA's as well. Their pre-recorded calls do not meet the above as well.

[Melanie2009]

I got one from a CA today that was an autodialer, but it was for someone else. Then it said if it wasn't the person they were calling I had 5 seconds to hang up, and then identified who they were and said to call them.