How to stop the CA cell phone calls

[KentWA]

I have done a lot of research on this matter in prep for a case that I eventually turned over to a lawyer because I was way too busy at the time. He did not even have to edit the complaint I had prepared except to add his name as counsel of record.

The TCPA (Telephone Consumer Protection Act) prohibits prerecorded calls or calls made using an automatic telephone dialing system to any cell phone without Express Consent. In January 2008 the FCC made this a little harder by ruling that under the TCPA rules a CA has express consent *if* the debtor provided the cell phone number in connection with the debt they are collecting. (FCC 07-232)

47 U.S.C. § 227((1)(A). (“It shall be unlawful for any person within the United States or any person outside the United States if the recipient is within the United States—(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—(i) to any emergency telephone line (including any “911” line and any emergency line of a hospital, medical physician or service office, health care facility, poison control center, or fire protection or law enforcement agency); (ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call[.]”).

However, that consent can be rescinded by the consumer with a simple letter. If they called a cell phone and you are going to DV them, include the text in there. Basically all that is required is to tell them not to call your cell phone any more and identify which number it is. This effectively terminates the existing business relationship for the purposes of the TCPA. Charvat v. Dispatch Consumer Serv., Inc., started this whole thing and is very much in line with FCC rulings and has been successfully used in other actions in other states.

The CA bears the burden of proving prior express consent. Also the OC is vicariously liable for CA actions:

To ensure that creditors and debt collectors call only those consumers who have consented to receive autodialed and prerecorded message calls, we conclude that

the creditor should be responsible for demonstrating that the consumer provided prior express consent. The creditors are in the best position to have records kept in the usual course of business showing such consent, such as purchase agreements, sales slips, and credit applications.37 Should a question arise as to whether express consent was provided, the burden will be on the creditor to show it obtained the necessary prior express consent. Similarly, a creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call. (FCC 07-232)

In this particular case I had 17 recorded voice mails from them. I sent them 3 separate letters not to call my cell phone identifying it by number to them. The best evidence was their own call recordings (discovery item) where I told the representative clearly that they were not to call this number because it was a cell phone.

What is their liability? $500 per call, there is not a range; it is a fixed $500 per call. Treble damages are appropriate for willful non-compliance and there is ample evidence of such. The 127 calls after first notice amounts to $63K in damages without the treble damages. They are right now fighting class certification.

They also employed an insurance lawyer to defend them and he did not have a clue in answering the complaint. They admitted to sending pre-recorded calls. Their affirmative defenses amounted to (1) having prior express consent (2) I was not charged for the calls (3) We did not know this was a cell phone.

1 and 3 can be shown to be not true and 2 does not matter under the TCPA.

[BTO429]

Where is the statute that says how much the damages are. I did not know this.

[nascar]

send a pm to "cracrap". I can tell you from experience that he is the resident expert on TCPA.

[cracrap]

i dont see a question in here....u wont get class cert or rather shouldnt be able to get class cert because the tcpa only allows private right of action , i believe offhand without looking , if memory serves me correctly, it actually prohibits class actions for individuals somewhere in there.( that was a bigass disclaimer)

... all cases ive seen in my research have denied class action status

...its 500.00 per violation( and u can have more than one violation in a single phone call), and its up to the court to determine if its willful for 1500.00 per violation, no guarantee that they will award it but they do have the power to treble the damages..always plead it for treble damages, the worst that can happen is that the court will say no

...by the way, not all jurisdictions have accepted the fcc ruling that confers "ebr" to c.a.'s just because u have provided a phone number on an application to an original creditor

...ebr does not need to be revoked in writing for the tcpa only the fdcpa requires it...

....and as far as being charged for the call, that was an "or" phrase not an "and" phrase in the tcpa

[Robert Nashville/Savannah]

Excellent information.

I’ve really been anticipating that the “pendulum” would be swinging back the other direction and that calling a cell phone would be looked upon no more differently than calling any other phone.

So many people only have cell phones today and cell phone “time” is so utterly inexpensive compared to what it used to be, it just doesn’t seem to me to be the issue it was say 10 or so years ago.

OP, I hope you’ll keep us informed of what happens in your case…I suspect it will be interesting!

[Methuss]

So many people only have cell phones today and cell phone “time” is so utterly inexpensive compared to what it used to be, it just doesn’t seem to me to be the issue it was say 10 or so years ago.

Except that it is an FDCPA violation if they know it is a cell phone before they call. That can be from the application stating so or if the consumer tells them in a prior call that it is a cell phone. Proof is discoverable.

Section 808(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.

Not one penny can be charged to the consumer for the communication. Cell phone minutes cost money because the consumer is charged for incoming calls -- unlike a landline where incoming calls do not incur a charge --, ergo if they call a cell phone they are causing the consumer to be charged for the call. That was part of my lawsuit against AMEX (they used a false name to collect and lost their exemption to the FDCPA in doing so) over 8 years ago and I did get a judgment against them for it.

[KentWA]

First the TCPA statute can be found here:

http://www.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000227----000-.html

My lawyer's primary focus is TCPA, FDCPA and FCRA. In my search of the county JIS I found 27 filings by him of TCPA class actions (I checked him out before going to see him). Not a single one had class certification denied, although many were settled prior to that question being answered.

Agreed that an EBR does not need to be revoked in writing, however it does give you a lot more proof and if you are writing to a CA for DV, include it.

I almost fell over laughing when this CA answered the complaint. Their lawyer must have never even read the statute. Claiming an affirmitive defense based on not being charged for the calls. Also claiming that they did not know it was a cell phone, well they were trying to collect on a cell bill that was ported to a different carrier and calling that very same number!

[BTO429]

not only calling a cell phone but isnt using a recorded message a violation?

[Robert Nashville/Savannah]

....

Actualy, some land line plans charge per call too but that wasn't my point...I do understand that the act currently allows a debtor to restrict calls to a cell phone, my point was that technology and, more importantly, society has changed so much, I was (and to some extent still am) expecting the law to be changed to allow collectors to call cell phones as "freely" as they can land lines.

Not to take the side of the collector but it does seems only fair...how many consumers gladly give their cell phone number as one if not the contact number for themselves when they are seeking credit only to wine when a CA calles them regarding that same extension of credit when they've defaulted?

[Methuss]

Not to take the side of the collector but it does seems only fair...how many consumers gladly give their cell phone number as one if not the contact number for themselves when they are seeking credit only to wine when a CA calles them regarding that same extension of credit when they've defaulted?

Nothing wrong with using the law to protect yourself. It's no different than placing a no tresspassing sign. No sign, you can't shoot on sight. Sign, then you can. Are you suggesting that tresspassers be allowed to do so even in the presence of a sign saying they will be shot on sight? What about all the other laws that protect people from unwanted harassment?

Collectors have and always have had a mode of communication they may use...mail. While consumers MUST use mail to protect their rights. What the collectors want is instant leverage rather than having to be patient. I see no reason why they must be given any extra advantage. If they want the right to make calls that involve a consumer getting a charge, then I say they must be subject to verbal validation and recording. No John Heywood for them.

[Robert Nashville/Savannah]

It's no different than placing a no tresspassing sign. No sign, you can't shoot on sight. Sign, then you can. Are you suggesting that tresspassers be allowed to do so even in the presence of a sign saying they will be shot on sight?

It might be different in Florida but you can’t just shoot someone here whether they are on your property or not and regardless of signage…if you want to shoot someone here, you had better be able to show justification for using deadly force (usually protecting your own life or the life of someone else)…someone simply being on your property would not constitute such a threat no matter what you sign might say.

I know the laws in Texas and some other states take a different view but I believe they would be the exception; not the rule.

What about all the other laws that protect people from unwanted harassment?

I’m not suggesting people should ever have to put up with harassment but I wouldn’t consider a phone call to a cell phone to be “harassment” just because it’s a cell phone and not a land line…harassment is harassment but not because of the “method” or “device” used to conduct the harassment (mail can be used too!)…if someone is being harassed by a collector I’m all for the consumer taking whatever legal steps are necessary and appropriate to stop it.

Collectors have and always have had a mode of communication they may use...mail. While consumers MUST use mail to protect their rights. What the collectors want is instant leverage rather than having to be patient. I see no reason why they must be given any extra advantage. If they want the right to make calls that involve a consumer getting a charge, then I say they must be subject to verbal validation and recording. No John Heywood for them.

I think we’ll just have to disagree a bit on this subject.

I do agree that most communication with a collector should be by mail, both for the protection of rights, for the sake of clarity and to avoid the manipulation games they want to play with consumers.

However, whether cell phone or land-line is being used, no consumer ever has to answer a phone call.

I think where we disagree is that I just don’t see anything “unfair” about a collector calling a cell phone; especially if the consumer gave that number as their primary contact number when initiating the transaction that ultimately generated the collection activity.

Some of my reasons are…

How society communicates has changed in recent years – I have no land-line (at least not one that actually accepts incoming calls(I do have DSL for my internet) so if I borrow money and give my cell phone number as my contact number; later default and start getting collection calls, I don’t think I should start crying foul when they call my cell phone.

The financial aspect has also changed significantly in the past decade or so…per minute rates on cell phone calls were astronomical in years past compared to what they are today…I have a cell phone as my only phone because it’s decidedly less expensive for me than having a land-line; even were I getting collection calls.

There is also a societal issue here as well…society as a whole, benefits when businesses are able to conduct business and today, the telephone (cell or otherwise) is a basic part of conducting business. If we accept that as “true” then I think we also need to accept that whether we like the “business” of debt collection, collectors do have a basic right to contact debtors and to do so using the tools most other businesses use…consumers are free to ignore their phone calls and/or if they wish, cut off all communication.

[BTO429]

I agree to an extent, only as far as what is harassment, continuously calling and leaving messages, filling up the voice mail box, calling after being told not to do so, calling several times a day, calling and arguing with the debtor?

A phone call once a day I do not see as harassment.

If you don't like the phone calls don't answer them, I don't.

But, if you did not give them your cell number and they figure out the number somehow then yes, I say the ca does not have the right to call.

[Robert Nashville/Savannah]

I agree to an extent, only as far as what is harassment, continuously calling and leaving messages, filling up the voice mail box, calling after being told not to do so, calling several times a day, calling and arguing with the debtor?

A phone call once a day I do not see as harassment.

If you don't like the phone calls don't answer them, I don't.

But, if you did not give them your cell number and they figure out the number somehow then yes, I say the ca does not have the right to call.

I'm not sure about the messages; I would say it sort of depends on what they say...right now I have an XM radio account that I'm considering not renewing...I'm getting at least one call a day from XM's "customer service" reminding me that my account will expire soon...frankly, it's irritating; almost to the point that it's pushing me ever more toward not continuing as a customer...but I don't believe it rises to the level of "harassment".

CA's aren't much different in that respect...if they leave messages that call you names or question your parentage; that's a bit different from telling you this is "so and so" and "please call us back".

I think as often as not, we call collector calls "harassment" mostly because we don't like collector calls; not because they are actually harassing us as the action is accepted legally.

[Methuss]

My next door neighbor had a CA call and they spoofed their callerID to show that it was his brother. He had been ignoring their calls based on the CID. So they got his brother's number somehow (probably off the application) and started calling with that. Now he can't tell if it is his brother or the collector.

There is no private right of action for dealing with this and the FCC seems to be dis-interrested in pursuing a debt collector that is spoofing CID.

So please. Debt collectors find a way. Simply ignoring their calls doesn't always work. And we've all heard or experienced debt collectors that simply refuse to stop calling even when notified. The penalties there are too weak to stop the behavior.

[nascar]

The penalties there are too weak to stop the behavior.

Agreed.

[Robert Nashville/Savannah]

I think it probably an accurate observation to say that anyone who has had the “privilege” of dealing with more than a few collectors has had a run-in with one or more that will blatantly and shamelessly violate every/any law to get what they want.

In those cases, rules against calling cell phones or new laws against selling cell phones (or new laws against any behavior) won’t help much…all one can do is try to find a way/reason/standing to sue the bastards.

In the case you cite, I would have been on the horn (or on the desk) of someone at my telephone provider and/or one or more state agencies until I found someone willing to take some action.

Of course it wouldn't have been a problem for me...I never take phone calls from my brother anyway.

[LUEser]

@ Methuss

I'm not too particularly versed in the TCPA, but there may be something in there.

But yeah, as far as the FDCPA goes, false and misleading reps doesn't cover this in my interpretation.

[Methuss]

As I discovered myself on a different issue (I had some junk-faxes hitting my home telephone line at 3 am every day), spoofed CID is a real problem because even the phone company's abuse department can't do anything.

The phone compnay relies on the CID info to trace calls in abuse cases. The only other way to trace the call is a live trace...which requires a court order under the wiretapping laws. Once the call has been hung up even the phone company can't help if a collector spoofs their CID.

[KentWA]

There is more to this case I shared in the original post than just the TCPA violations. The TCPA has just become a significant portion of the case. It is basicly the big hammer in the toolbox at the moment.

Continued calls to a phone, any phone has no other intention other than harrassing the alleged debtor into paying. Once a debtor requests all communications by mail, all other calls are basicly attempts to harass you into paying. Although under the laws that is not recognized as such unless it is a cell phone. CID was useless since it only shows a phone number on cell phones and these guys used many different numbers to call. Also in one case there were more than a dozen calls in one day.

In this case they responded to my DV and stated the amount of the debt owed was just over $100, two days latter I get a letter stating that the debt was over $1200. Another week goes by and they send another letter saying it is about $500. If they could have figured out and shown me some reliable number, we likely would not be in the situation we are in now.

[Robert Nashville/Savannah]

....Continued calls to a phone, any phone has no other intention other than harrassing the alleged debtor into paying. Once a debtor requests all communications by mail, all other calls are basicly attempts to harass you into paying.

Good luck with that but I think you are spitting into the wind with that one.

A consumer can ask all day long that that CA restrict all contact to USPS (or some other form of communication the consumer prefers) but there is nothing in the law that requires the CA to comply and making the assumption that any more calls are "harassment" is quite a stretch at best, cell phone or otherwise.

More importantly, while they may well be calling to “harass”, what you assume you know and what you can prove to a judge are two very different things…they have a legitimate business reason to call (despite their apparent inability to use basic math) so in absence of something more than just a ringing phone (such as calling at 3AM or nasty voice mail messages or some such behavior), etc., I think making a charge of harassment stick is going to be very difficult.

[Methuss]

A consumer can ask all day long that that CA restrict all contact to USPS (or some other form of communication the consumer prefers) but there is nothing in the law that requires the CA to comply and making the assumption that any more calls are "harassment" is quite a stretch at best, cell phone or otherwise.

Actually it's not a stretch. Here's the law as codified in section 501 of the Telecommunicaiton Act:

(a) Whoever--

(1) in interstate or foreign communications--

...

© makes a telephone call or utilizes a telecommunications

device, whether or not conversation or communication ensues, without

disclosing his identity and with intent to annoy, abuse, threaten, or

harass any person at the called number or who receives the

communications; or

(D) makes or causes the telephone of another repeatedly or

continuously to ring, with intent to harass any person at the called

number; or

(E) makes repeated telephone calls or repeatedly initiates

communication with a telecommunications device, during which

conversation or communication ensues, solely to harass any person at the

called number or who receives the communication; or

(2) knowingly permits any telecommunications facility under his

control to be used for any activity prohibited by paragraph (1) with the

intent that it be used for such activity, shall be fined under title 18,

United States Code, or imprisoned not more than two years, or both.

So yes, it's actually a class C Federal FELONY to harass a person by phone...and the legal definition is quite broad. Calling after being told to stop is definately within the scope of this law. Subsection 2 even holds employers accountable for the actions of employees using their equipment to harass by phone.

[Robert Nashville/Savannah]

...all subject to the interpretation of the court, is it not?

The "intent" of the caller seems to be crucial to application of the statute...substantiating intent is not at all easy which is what I was saying above.

Likewise, isn't it up to the court to decided how many phone calls per hour/day/week/month are "enough" to be considered "continuous" or would reach the level of harassment?

Isn't the substance of conversations, if any, to be considered in determining harassment?

I'm not saying that the statutes aren't relevant or that the OP doesn't have a case; I'm just saying that this isn't an slam-dunk either.

[KentWA]

To clarify, what I wrote about harassment was 100% opinion. I am not asserting that in the law suit. I believe we as consumer should be able to terminate any calls to us if we make affirmative contact in the form of a DV or other method and direct all further communication by mail. In that case we have establish a viable two way communication. However what we want and what we get is two different things.

However as the TCPA now stands, they are liable for a lot of money since it is my right to tell them to stop calling that cell phone, and they must respect that. If they chose to ignore that, the TCPA says they can pay at least $500 per call for the privlage of ignoring the law.

Until Congress changes the TCPA, it is how it is. In light of all the new laws restricting usage of cell phones in cars, and the people who get up in arms about cell phone usage in restarants, theaters, etc. it is unlikely Congress will likely change a law that permits even more calls to cell phones.

To shoot down the arguement about how cheap the minutes are on cell phones these days, what about the 20+ calls when I was in roaming and the caller Id just said unknown? These calls cost me a significant premium charge to hear there stupid recorded message.

[fatherof3]

I do not understand your position Mr. Nashville. You always seem to side with the CA's when it pertains to phone calls. Like I have said before give us your number and we can call you all hours of the day and night and see if you like it. It gets very redundant to have call after call after call when you have already spoken with them once in the same day.

Now, to answer the question for my friend from WA. Washington has RCW that prohibits phone calls to a cell phone, I have seen this for myself. They also have a RCW that limits the number of times that they may call during the week (3) three times, after that it is considered harrassment.

How to find these RCW? Check AmeriKaner83 post, on the bottom is some links, click on them and read up. Not only do you have the FDCPA you have State law to help you.

Hope this helps, I really dislike getting pnone call after phone call after phone when you already spoken to them once and explained what is going on.

BTW, document the calls, Date of call (Month, day , year.) Time of call or message, Length of call or message, Type of contact ( phone call, Voice mail, etrc) Collectors name (The person calling) and company name, Collection phone number and What the Collector said? And who did the collector speack to? BE DETAILED!!! The more you get on these people the more violations for not only collections but harrassment also.

Then contact a NACA Attorney and get some relief.

Good luck,

Father of 3

I will check back later, got errands to do.

[Robert Nashville/Savannah]

I do not understand your position Mr. Nashville. You always seem to side with the CA's when it pertains to phone calls.

I generally don’t have a problem with any CA so long as they are following the law…aside from that; I guess I just don’t see a phone call, unwanted or not, as being something to get heart-burn over.

To read what some people say about getting phone calls, a reader would think these collectors are showing up with battering rams, knocking down front doors, shooting the consumer’s dogs and doing “Keifer Sutherland/24” style interrogation on people rather than just calling a phone number (likely the very same phone number the consumer gave when they took out the credit the collector is now calling about).

Regardless of why a caller is calling, no one ever has to answer a call they don’t want to take…no one ever has to allow a conversation to go one for one more second than they want it to.

I can fully understand the indignation if a collector is calling about a debt that doesn’t even belong to the consumer (or in a similar situation) but if you actually did default on a debt; should it really surprise you that somebody is gong to call you about it? Is it really that burdensome to hear the phone ring? Is it so impossible for the consumer (who is presumably an adult) to not let a ringing phone ruin his/her day

Like I have said before give us your number and we can call you all hours of the day and night and see if you like it. It gets very redundant to have call after call after call when you have already spoken with them once in the same day….

Where in anything I’ve posted in this thread (or any post anywhere on the board) have I ever suggested that a CA has a right to call at “all hours of the day and night” or to do anything else that blatantly ignores the law (FDCPA/TCPA, etc.)???

Sure it’s redundant to have “call after call” (whatever precisely you mean by that; there is a difference between a phone call a day and 20 phone calls a day).

Sure it’s irritating to have to hear the phone ring when you suspect it’s about a debt (or any other subject) that you don’t want to deal with.

But…

The law doesn’t protect you from being irritated.

The law doesn’t care if you like or want the calls.

They law has specifies restrictions about when and where a collector can call and restrictions the consumer can invoke and those CAs who violate those restrictions ought and need to be held accountable and I’ve never said otherwise.

Beyond that, a consumer’s level of irritation is essentially a non-issue.