TCPA question - does the auto-dialer restriction apply to home phones?

[TheBeeGuy]

I've got a couple of CAs that continued calling after I told them not to in writing. I know it's an FDCPA violation, but I want to toss the TCPA violations on the pile as well.

I'm looking at section ((1)(A):

( Restrictions on use of automated telephone equipment

(1) Prohibitions

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;

I don't see anything that prohibits the use of auto-dialers to residential phone lines. What am I missing?

[Downto0]

This is what you are missing:

(4) The term “telephone solicitation” means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person, but such term does not include a call or message (A) to any person with that person's prior express invitation or permission, (to any person with whom the caller has an established business relationship, or © by a tax exempt nonprofit organization.

Telling the collector that you don't want them to call you anymore would not violate the tcpa. You would have to prove that you have never had an "established business relationship" with them.

You could bring this issue up in your counterclaims and if the collector could not establiish a business relationship via assignment you then could ask for statuatory damages from the tcpa.

[trueq]

1.) You have to have a contract with collector, they have TO PROVE YOU CONSENTED TO THE CALL!

This means they have to prove they are an agent of the OC, the OC has your consent to call, AND THAT CONSENT APPLIES TO THAT SPECIFIC PHONE NUMBER!!!!!

That is nearly impossible to prove!

I've sued on this. I have changed my phone number several times since my default, and they still find you with the pre-recorded messages.

I had a JDB call me on my cell phone 47 times with a pre-recorded message! (I NEVER, EVER, put my cell phone on any credit card application.)

I sent 3 cease communication letters, that withdraws any perceived consent in my state.

This particular JDB has another problem!!!!!

No proper notice of assignement when they bought the debt! This means, by lack of this notice of assignment of the claim(s), they have not perfected possession and rights to the claim. The assignment is ineffective under my state law! OC would retain all rights, including any perceived consent and business relationship I had with OC! JDB has no contractual relationship with me and nothing but a whole bunch of unwanted business solicitations on my voice mail!

ALWAYS! ALWAYS! ASSERT TCPA!

I'm going to get $500 per phone call on this. $1500/call if I can prove intent!

Use TCPA, "prior consent" and "business relationship" has to be proven!!!!!

Don't knock out TCPA, make them defeat TCPA in court.

Don't defeat use of TCPA in your mind! JDB wins when you do that!

Edited November 20, 2009 by trueq

[Downto0]

Hey trueq, as long as you are on the line I've got a question for you. Doesn't the tcpa really apply to solicitations for purchasing, renting or investing in property or goods or services?

(4) The term “telephone solicitation” means the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services

I don't see where the tcpa really has anything to do with collections. Have you actually been awarded any damages using the tcpa?

[TheBeeGuy]

Telling the collector that you don't want them to call you anymore would not violate the tcpa. You would have to prove that you have never had an "established business relationship" with them.

So....you agree with me that automated collection calls to a non-cellular personal number following written notice that you do not want them calling that number do not violate the TCPA. Is that correct?

[trueq]

I had this exact same discussion with an attorney from Washington State, here's what he said, after telling me the same thing you are,

"You are presuading me. I have to look at some of the regulations to see what the FTC has done with this.

There are sections of the act which are much broader than I first thought. Because the act uses undefined terms (i.e. "artificial or prerecorded voice") without limiting the application to solicitations, it probably does apply to debt collectors using artificial voice calling systems, especially if they go to a cellular phone.

I am going to take a harder look, but I like it a lot more now than I did a day ago.

Great discussion"

For people making money on this, look at this thread,

http://debtorboards.com/index.php?topic=3998.0

ACA says debt collection is a "service".

http://www.acainternational.org/files.aspx?p=/images/209/code_of_ethics_08.pdf

"Adhere to honesty and integrity in advertising and in all representations to the public concerning

credit and collection industry products and services." (emphasis added)

I have not recovered on this Yet. But I just started asserting TCPA. Others are having success against debt collectors!

[Downto0]

Op, yes I agree with you.

trueq, I believe the tcpa mostly applies to telemarketers trying to sell you something.

The way I read the tcpa, non-commercial calls are exempt:

(2) REGULATIONS; EXEMPTIONS AND OTHER PROVISIONS.—The Commission shall prescribe regulations to implement the requirements of this subsection. In implementing the requirements of this subsection, the Commission—

(A) shall consider prescribing regulations to allow businesses to avoid receiving calls made using an artificial or prerecorded voice to which they have not given their prior express consent;

( may, by rule or order, exempt from the requirements of paragraph (1)( of this subsection, subject to such conditions as the Commission may prescribe—

(i) calls that are not made for a commercial purpose

I am reading from a summary of the tcpa which is probably less confusing than the act itself. You might go to the actual act and find something useful, but I doubt it. The summary should pretty much offer the meat of the act without all the footnotes and other garbage which tend to confuse matters.

http://www.gpoaccess.gov.

Once there, choose United States Code and then 47 U.S.C. 227. If you find anything interesting let me know.

If you eventually come across any cases which decide in the favor of the tcpa applying to debt collection, I'd like to read them.

Otherwise, with a strict reading of the tcpa I can't see where it applies to debt collection.

it probably does apply to debt collectors using artificial voice calling systems, especially if they go to a cellular phone.

This is the only thing which may be adaptable if they use an automatic calling devise.

[trueq]

With no valid claim, right, prior consent, can call me with impugnity under this act?

Can't a telemarketer just claim to be a JDB then and get away with it?

Or better yet, how is a JDB with no valid claim, valid right to the claim, with no prior consent, and no prior contractual relationship with the consumer NOT reduced to a telemarketer under the TCPA?

I think if you exclude TCPA from your lawsuit or claim, you can be missing the boat on recovery.

I'm going after it.

Edited November 20, 2009 by trueq

[TheBeeGuy]

"There are sections of the act which are much broader than I first thought. Because the act uses undefined terms (i.e. "artificial or prerecorded voice") without limiting the application to solicitations, it probably does apply to debt collectors using artificial voice calling systems, especially if they go to a cellular phone."

No question that it applies to artificial/prerecorded voice, cellular or not, and automated dialers are definitely prohibited to cell phones.

The question is....are auto dialers alone prohibited in any way on non-business land lines?

Here's the exact scenario I'm asking about:

CA calls following a notice that you don't want them calling you. You don't answer the phone and they don't leave a message so we are going to assume for the sale of this exercise that the are not using an artificial or pre-recorded voice system. We are going to assume for the sake of this exercise they use an auto dialer. Is this a TCPA violation?

[Downto0]

So a JDB...

With no valid claim, right, prior consent, can call me with impugnity under this act?

No, I'm not saying that you should not enter violations of the tcpa in your counterclaims or lawsuits. In fact I suggested that the op should in my first post in this thread. The problem is that the tcpa is an untested act for collections.

These are definately violations of the FDCPA and FCRA (impermissible purpose) and you can ask for damages with these acts but I believe that the tcpa directly concerns telemarketers. The JDB is not trying to sell you something. They are not offering to provide a service for you.

The JDB could not call with impunity because you could claim violations of the FDCPA. But, you could not claim the JDB violated the tcpa no more than it did not violate the FCRA in regards to non commercial telephone calls to a land line. Certain acts apply to certain violations. The tcpa only applies to telemarketers or other callers of the same ilk.

The only exception may be the cell phone usage because the tcpa specifically states that:

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—

(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;

But, this usage would need to be by an automatic telephone dialing system or an artificial or prerecorded voice.

Can't a telemarketer just claim to be a JDB then and get away with it?

Wouldn't take much to prove otherwise, would it? Unless, of course, the JDB did a combination of telemarketing and bill collection to where the two were always mingled. I haven't heard of such a thing.

I quickly glanced through the Debterboards site. The op there doesn't really offer support for their theory. It's a good piece to read but all of the suggestions should be researched because they do not provide their own support.

Case law is pretty much the deciding factor in interpreting how to apply the different acts congress muddled together. I haven't seen any yet.

And, the problem is, if you don't have case law then you will need to educate the judge. The pro ser defintely has an uphill battle here.

Here's the exact scenario I'm asking about:

CA calls following a notice that you don't want them calling you. You don't answer the phone and they don't leave a message so we are going to assume for the sale of this exercise that the are not using an artificial or pre-recorded voice system. We are going to assume for the sake of this exercise they use an auto dialer. Is this a TCPA violation?

No. If it is applicable at all, and I think it is, the call would have to be to a cell phone and made with an automatic dialer.

[trueq]

If you are suing already, make it a count of the lawsuit. If that count gets dismissed, no sweat.

However, if the court sides with you on it, it could be a big payday!

This is why we have courts, to sort out increadibly complex issues like this!

Even before that happens, there will be many opportunities to settle it out. You can decide to take a check long before the court chews on the technical issue!

Sue first! Sort out later!

I don't know about you, but this is a complex thing to defend against, especially if you go them dead to balls on the phone calls and the pre recorded aspect!

File it, make them hurt!

[TheBeeGuy]

Can't a telemarketer just claim to be a JDB then and get away with it?

I can claim to be Santa Claus but it will eventually come out in the wash.

Besides, claiming to be a JDB opens them up to FDCPA violations as well. I can't imagine a scenario where they would want to convert a $500 violation to a $1,000+ violation.

[trueq]

Remember I have the 47 phone call situation.

$23,500 for statutory TCPA violations.

$1000 for the statutaory FDCPA violation. (all 47 calls is 1 violation)

Now which way do you argue?

[Downto0]

The tcpa definately offers a better deal but unless the JDB is calling on the cell phone with an automatic system I don't think you will convince a judge that a JDB is liable to the tcpa, unless the JDB is moonlighting as a telemarketer.

[trueq]

Every person I sue denies being a "debt collector" under FDCPA and State Consumer Acts.

With a TCPA count in there...you can use their own denial against them!

If they are not a debt collector, they are acting as a "soliciter".

Make them fall on one of the swords!

Give me a few days, I'll do a PACER search and detail some of the recoveries on this act.

Edited November 20, 2009 by trueq

[TheBeeGuy]

Ok, we we're all in agreement that all automated dialer calls to cell phones seem to clearly create liability under the TCPA.

Does the caller have an out by claiming they didn't know it was a cell phone? 'Private Right to Action' in section ( doesn't state an affirmative defense whereas section © does. ( says the court can increase the liability if it find evidence of knowing and willful violation which would imply that even if it was a mistake (i.e. they didn't know), the liability is still there. Am I reading that right?

[Downto0]

If they are not a debt collector, they are acting as a "soliciter".

No. A debt collector claiming not to be a debt collector does not make them a solicitor.

It's pretty simple. To violate the tcpa one has to be selling something. The only exception is the cell phone usage.

[Downto0]

Does the caller have an out by claiming they didn't know it was a cell phone?

Using a strict reading of the tcpa I would say no. It does not have a bona-fide error clause

[cracrap]

your probably going to want to read watson v nco,hicks v client services,rivas v rpm to start with....as they pertain to debt collection..

[TheBeeGuy]

I would say this pretty much sums it up...

Watson v. NCO on reconsideration order, October 2006:

The FCC exercised it authority to create exemptions with the issuance of its October 16, 1992 Report and Order. 7 FCC Rcd. 8752 (1992). Therein, the FCC created an express exemption for calls made to a party with whom the caller has an established business relationship. Id.; 47 C.F.R. § 64.1200(a)(2)(iv). In this report, the FCC then addressed debt collection calls and declared that "all debt collection circumstances involve a prior or existing business relationship." 7 FCC Rcd. 8752, 8771-8772. The report continued, "an express exemption from the TCPA's prohibitions for debt collection calls is unnecessary because such calls are adequately covered by exemptions we are adopting here for commercial calls which do not transmit an unsolicited advertisement and for established business relationships." Id. at 8773.

The FCC reiterated its position on debt collection in a Memorandum and Order issued on August 7, 1995, and again stated that such calls fall under either the exemption for established business relationships or the exemption for commercial calls that do not adversely affect privacy interests and do not transmit an unsolicited advertisement. 10 FCC Rcd. 12,391, 12,400 (1995).

[trueq]

If the business relationship is not there. You can sue under tCPA.

If you read my previous post, it can be difficult for JDB to establish a prior business relationship because of lack of notice of assignment in some states!

I read the MTD order in Watson vs. NCO case. It dismissed USC section 223 count #2 which is a different communications act with no private right of action, the USC 227 count #3 (TCPA) survived the defendant's MTD!

So Watson vs. NCO proves you should leave TCPA in your lawsuit!

Edited November 21, 2009 by trueq

[cracrap]

nco is only one case...it involved mistaken debt collection calls to a residential landline

read the others as they apply to debt collection calls placed to cellphones...

especially hicks as the plaintiff was granted summary judgment....

the restrictions are on the equipment used, it doesnt matter who uses the equipment-ebr does not apply to autodialed calls...the touchstone is express consent...

[TheBeeGuy]

If the business relationship is not there. You can sue under tCPA.

If it's a CA assigned by the OC, the business relationship is there.

If it's a JDB, you have to get past the JDBs claims to the debt. Not terribly difficult, but a hurdle nonetheless.

I read the MTD order in Watson vs. NCO case. It dismissed USC section 223 count #2 which is a different communications act with no private right of action, the USC 227 count #3 (TCPA) survived the defendant's MTD!

So Watson vs. NCO proves you should leave TCPA in your lawsuit!

Not quite. The key issue in the courts ruling is that NCO was not calling a debtor. They were calling someone they THOUGHT was a debtor. The ruling flat out says that if they had been calling the correct person the TCPA would not apply.

So in order to prevail under Watson v. NCO, you would have to first make it past the CAs claim that you are in fact the correct person. If the debt is still owned by the OC, the assignment evidence should be easy to produce.

If it's a JDB, as I said, that's another matter altogether...

[TheBeeGuy]

nco is only one case...it involved mistaken debt collection calls to a residential landline

read the others as they apply to debt collection calls placed to cellphones...

especially hicks as the plaintiff was granted summary judgment....

the restrictions are on the equipment used, it doesnt matter who uses the equipment-ebr does not apply to autodialed calls...the touchstone is express consent...

Do you have links to Hicks and Rivas?

I couldn't find the actual cases when I googled 'em.

[Downto0]

"

business relationship" is the key...

If the business relationship is not there. You can sue under tCPA.

You can always sue but it would be a waste of time under the conditions presented here because proving that the JDB does not have assignment, thus no business relationship, is only one of the hurdles you will need to jump. Don't forget about the commercial calls:

such calls are adequately covered by exemptions we are adopting here for commercial calls which do not transmit an unsolicited advertisement and for established business relationships

So, even if you could prove the JDB did not have a business relationship with you, you would still have to prove that they were trying to sell you something.

How would you do that?

If you want to sue someone under the tcpa then just wait for a telemarketer to call. Record the whole conversation about who they are, who they represent, what they are selling, etc. Then file suit. It doesn't seem to matter if your number is on the do not call list, or not, but, if it is, you may be able to get the fine trebled.

I'd forget the bill collection angle, except for the cell phone usage by an automated device.

By the way cracrap, glad you could come on board to help the discussion. I know that the tcpa is your thingy.

Edited November 22, 2009 by Downto0