"The Telephone Consumer Protection Act"

[jack1212]

I havent really seen a thread dedicated to just this topic, and i feel it's one that is highly overlooked.

 

Upon the search, i found the following.

 

http://www.the-dma.org/guidelines/tcpa.shtml

 

 

The Telephone Consumer Protection Act was passed in 1991. The Federal Communications Commission the rules and regulations implementing the act went into effect on December 20, 1992. A court challenge to parts of the act ultimately failed.

From a telephone marketer's viewpoint, the most significant part of the TCPA regulations concern commercial solicitation calls made to residences. Those making the calls are required to:

 

Limit the calls to the period between 8 A.M. and 9 P.M.

 

Maintain a "do not call list" and honor any request to not be called again. When such a request is received, the requester may not be called again on behalf of the business for whom the solicitation is made. One error is allowed in a twelve month period. Subsequently, the soliciting companies are subject to penalties. A person's name must be kept on the "do not call list" indefinitely.

 

Have a clearly written policy, available to anyone upon request.

 

Have a clearly defined training program for their personnel making the telephone solicitations.

 

If you are a service bureau, forward all requests to be removed from a list to the company on whose behalf you are calling. Its is that company that is legally liable under the TCPA, not the service bureau. The "do not call" request must also be honored by any affiliate or subsidiary of the company if there is a reasonable expectation on the part of the consumer that there request would apply also to the affiliate or subsidiary.

 

A call is exempt from the TCPA if the call:

 

Is made on behalf of a tax-exempt nonprofit organization.

 

Is not made for a commercial purpose.

 

Does not include an unsolicited advertisement, even if it is made for a commercial purpose.

 

Is made to a consumer with whom the calling company has an established business relationship. This relationship cannot be established merely by having made a prior solicitation call. The customer ends this exemption when he or her requests that no more calls be made.

 

Other important provisions of the TCPA include:

A ban on autodialers and artificial or prerecorded voice messages programmed to call any emergency phone lines (including 911 numbers, hospital emergency lines, physicians or medical service lines, health care facilities, poison control centers, fire protection or law enforcement agencies), pagers or cellular phones, or a call for which a charge is made to the calling party.

 

A prohibition against the use of artificial or prerecorded voice messages to call a residence except in cases of emergency or if the caller has received prior express consent. (Such calls to businesses are not prohibited.)

A prohibition against the use of an autodialer to engage two or more lines of a multi-line business.

A requirement that anyone using an autodialer or an artificial or prerecorded voice message to call any number state the identity of the caller at the beginning of the message and give the address and phone number of the caller during the call.

 

A ban on sending unsolicited advertisements by fax to anyone without prior express consent. A prior business relationship is considered consent unless the recipient of the fax withdraws that consent. (This provision was unsuccessfully challenged in federal court.)

 

The TCPA can be enforced in at least three different ways:

The individual who receives a call after a name removal request has been given to the caller is granted a private right of action in a local court and may sue for $500 in damages for each violation. In some cases, the courts can levy triple damages. Similar suits may be filed for violations of the TCPA's provisions regarding faxes, autodialers, and artificial or prerecorded messages.

States may initiate civil action against offending companies on behalf of their citizens.

Complaints may be filed with the Federal Communications Commission, which has the power to assess penalties against parties in violation of the TCPA.

 

 

Here is a topic from Jen, with some Proposed Changes.

 

http://creditboards.com/forums/index.php?s...=426555&hl=

 

 

 

Anyone use this law to their advantage? I realize Dolemite has.

[NeverQuietHere]

Good topic to start. I don't know enough about this as I've concentrated mostly on FDCPA and FCRA. I hope we get more insight into this.

[Dolemite_73]

This law is vastly under-utilized. And it is one heck of a law (especially if your state, like NC, has a similar law). And CA's, OC's, JDB's etc violate this law EVERYTIME they call your cell phone using auto-dialed calls with pre-recoreded messages. I am no expert by any means, but if anyone has questions, I am well versed enough to address them.

[jack1212]

This law is vastly under-utilized. And it is one heck of a law (especially if your state, like NC, has a similar law). And CA's, OC's, JDB's etc violate this law EVERYTIME they call your cell phone using auto-dialed calls with pre-recoreded messages. I am no expert by any means, but if anyone has questions, I am well versed enough to address them.

 

Do they have to be made aware under this law that it's a cell?

 

Otherwise, i assume they could claim bonafide error.

[Jen23514]

I swear this thread exists, and was looking for it the other day, but couldn't find it.

 

So, quite possibly, I'm wrong LOL. Thanks Jack for starting one

[jack1212]

yea, i searched.

 

Didn't get but like 5-6 topics.

 

Oh well.

[Dolemite_73]

This law is vastly under-utilized. And it is one heck of a law (especially if your state, like NC, has a similar law). And CA's, OC's, JDB's etc violate this law EVERYTIME they call your cell phone using auto-dialed calls with pre-recoreded messages. I am no expert by any means, but if anyone has questions, I am well versed enough to address them.

 

Do they have to be made aware under this law that it's a cell?

 

Otherwise, i assume they could claim bonafide error.

Depends on the state's case law. Some states say there is a duty to inform. Other don't. This is why a consumer should add something such as this to their DV letters:

 

"It is inconvenient to call me at ####### at anytime as we have no Expressed Business Relationship."

 

Adding that line not only takes away EBR, it also shows them the number. There are skip tracing tools out there that can be used to determine if a number is a wireless number or not.

[Bobbydebt]

This law is vastly under-utilized. And it is one heck of a law (especially if your state, like NC, has a similar law). And CA's, OC's, JDB's etc violate this law EVERYTIME they call your cell phone using auto-dialed calls with pre-recoreded messages. I am no expert by any means, but if anyone has questions, I am well versed enough to address them.

 

My one attorney told me he would not pursue TCPA violations because the debt was legitimate. I knew he was wrong, but arguing with an attorney was not what I felt like doing at the time.

 

My understanding is that it hinges on 2 specifics:

1. Express consent

2. The calls were to your cell

 

Violations of $500 and $1,500 (for willful violations)

[jack1212]

Also, i added Jens link in my OP, which shows the proposed changes in case it got buried in there.

Edited March 3, 2010 by jack1212

[Dolemite_73]

This law is vastly under-utilized. And it is one heck of a law (especially if your state, like NC, has a similar law). And CA's, OC's, JDB's etc violate this law EVERYTIME they call your cell phone using auto-dialed calls with pre-recoreded messages. I am no expert by any means, but if anyone has questions, I am well versed enough to address them.

 

My one attorney told me he would not pursue TCPA violations because the debt was legitimate. I knew he was wrong, but arguing with an attorney was not what I felt like doing at the time.

 

My understanding is that it hinges on 2 specifics:

1. Express consent

2. The calls were to your cell

 

Violations of $500 and $1,500 (for willful violations)

That attorney is an salamander. And probably cost himself a nice little payday. The underlying debt bear no weight in regards to whether a not a call is in violation of the TCPA or not.

[Bobbydebt]

Dolemite,

 

I have a recorded VM from a CA that consists of 2 full minutes of music before a rep picks up the line.

 

But, the call was to my home phone.

 

Im not well versed in the TCPA, more then some maybe, but I thought the calling party had to answer within 2 seconds of a connected call AND state who they are. Am I correct?

[Dolemite_73]

Dolemite,

 

I have a recorded VM from a CA that consists of 2 full minutes of music before a rep picks up the line.

 

But, the call was to my home phone.

 

Im not well versed in the TCPA, more then some maybe, but I thought the calling party had to answer within 2 seconds of a connected call AND state who they are. Am I correct?

You are correct. That call, according to FCC regulations, violated the TCPA.

[NeverQuietHere]

Wow, bobby. That kinda stinks. I know my atty was talking to me about a client who had over 40 of these violations....on top of the FDCPA. He was going to just go after the TCPA because it was SO much bigger.

[jack1212]

Heres another link Jen made which shows how often this was used.

 

Terribly Under used

 

 

http://creditboards.com/forums/index.php?s...=427013&hl=

[chriswufgator]

This law is vastly under-utilized. And it is one heck of a law (especially if your state, like NC, has a similar law). And CA's, OC's, JDB's etc violate this law EVERYTIME they call your cell phone using auto-dialed calls with pre-recoreded messages. I am no expert by any means, but if anyone has questions, I am well versed enough to address them.

 

My one attorney told me he would not pursue TCPA violations because the debt was legitimate. I knew he was wrong, but arguing with an attorney was not what I felt like doing at the time.

 

My understanding is that it hinges on 2 specifics:

1. Express consent

2. The calls were to your cell

 

Violations of $500 and $1,500 (for willful violations)

That attorney is an salamander. And probably cost himself a nice little payday. The underlying debt bear no weight in regards to whether a not a call is in violation of the TCPA or not.

 

Some people get all moral about it..."But what's the point, you DO owe it?", etc.

 

Could well have been that effect.

[jack1212]

Once my rights gets violated and i am bullied, i owe no one nothing.

[Bobbydebt]

This law is vastly under-utilized. And it is one heck of a law (especially if your state, like NC, has a similar law). And CA's, OC's, JDB's etc violate this law EVERYTIME they call your cell phone using auto-dialed calls with pre-recoreded messages. I am no expert by any means, but if anyone has questions, I am well versed enough to address them.

 

My one attorney told me he would not pursue TCPA violations because the debt was legitimate. I knew he was wrong, but arguing with an attorney was not what I felt like doing at the time.

 

My understanding is that it hinges on 2 specifics:

1. Express consent

2. The calls were to your cell

 

Violations of $500 and $1,500 (for willful violations)

That attorney is an salamander. And probably cost himself a nice little payday. The underlying debt bear no weight in regards to whether a not a call is in violation of the TCPA or not.

 

Some people get all moral about it..."But what's the point, you DO owe it?", etc.

 

Could well have been that effect.

 

I agree Chris.

 

But, the last person I expect to take that stance is MY attorney.

 

Thats like your mother telling you that youre not a handsome boy.

Edited March 3, 2010 by Bobbydebt

[GonnaGetEm]

I agree Chris.

 

But, the last person I expect to take that stance is MY attorney.

 

Thats like your mother telling you that you're not a handsome boy.

 

LOL!

 

Great thread. I thought that was the case. I almost want to opt in again just so the one lingering CA on 2 of my reports will call my cellphone with their auto-dialer again, now that I understand what "one-party state" means.

[GEORGE]

This law is vastly under-utilized. And it is one heck of a law (especially if your state, like NC, has a similar law). And CA's, OC's, JDB's etc violate this law EVERYTIME they call your cell phone using auto-dialed calls with pre-recoreded messages. I am no expert by any means, but if anyone has questions, I am well versed enough to address them.

GOOD LUCK COLLECTING

 

I have been dealing with WRONG NUMBER CA CALLS FOR ONLY 20+ YEARS

[bluesmap]

thanks i need to print and read

[Bobbydebt]

Dolemite,

 

One aspect of the TCPA that confuses me is "Express Consent/EBR." In what cases does this transfer from the OC to the CA?

[richdmc]

Ok I am confused about how this works. Maybe some one here can clear a question up.

 

Two weeks ago I stared getting a call to my cell phone about 8:30 in the morning. It is automated message saying "this is National Action Financial Services please call us at" and then gives a number. I called it back and the system used caller id and asked if I was me. Turns out this is for some late charges at blockbuster. Due to a death in the family I forgot to return some movies and games and they ended up being about a week late. I returned them and was going to pay the late charges next time we went to rent. We haven't been up there yet but according to NAFS I owe $140. 5 Day rental for everything was around $24. The call to me never had a live person and when I called back in I did not get a live person. It was all automated.

 

Can they keep calling since it is a cell phone and their end is all automated? They have called everyday for two weeks but I am usually a sleep when they call since I work nights. Today was the first time I called to see what it was.

[Dolemite_73]

Dolemite,

 

One aspect of the TCPA that confuses me is "Express Consent/EBR." In what cases does this transfer from the OC to the CA?

Depends on the state (Remember that though the TCPA is a federal law, it is adjudicated in state courts). Some states claim that EBR transfer from the OC to any of its assignees. Other states feel EBR is not transferred. That is why putting that sentence in you letters is critical to set up TCPA violations. For instance, say the OC has your original cell phone number and passes this on. EBR could be attached depending on your state. Lets say the OC has your original cell phone number. You change numbers and did not inform the OC. If the CA for the OC obtains that number somehow, EBR is not attached.

[Dolemite_73]

Ok I am confused about how this works. Maybe some one here can clear a question up.

 

Two weeks ago I stared getting a call to my cell phone about 8:30 in the morning. It is automated message saying "this is National Action Financial Services please call us at" and then gives a number. I called it back and the system used caller id and asked if I was me. Turns out this is for some late charges at blockbuster. Due to a death in the family I forgot to return some movies and games and they ended up being about a week late. I returned them and was going to pay the late charges next time we went to rent. We haven't been up there yet but according to NAFS I owe $140. 5 Day rental for everything was around $24. The call to me never had a live person and when I called back in I did not get a live person. It was all automated.

 

Can they keep calling since it is a cell phone and their end is all automated? They have called everyday for two weeks but I am usually a sleep when they call since I work nights. Today was the first time I called to see what it was.

Since it is an auto-dialed number with a pre-recorded message call to a cellphone, they are in violation.

[richdmc]

Thanks. Will start taking pics of my caller ID each time they call and will start a letter to them.