TCPA and FCC

[BV80]

Has anyone read this document from the FCC?

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 64

[CG Docket No. 02–278; FCC 07–232]

Rules and Regulations Implementing

the Telephone Consumer Protection Act of 1991

Synopsis

On October 4, 2005, ACA filed a petition seeking clarification that the prohibition against autodialed or prerecorded calls to wireless telephone numbers in 47 CFR 64.1200(a)(1)(iii) of the Commission’s rules does not apply

to creditors and collectors when calling wireless telephone numbers to recover payments for goods and services received by consumers.

(skipped a few paragraphs)

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. A third party collector may also be liable for a violation of the Commission’s rules.

I've said before that it's my opinion if you know you never gave your cell phone number to a creditor, it's not necessary to revoke consent that you never gave in the first place. It's up to the creditor to prove they have consent to call with an autodialer or leave a recorded message. This also shows that creditors are responsible for the actions of the CAs they may contract to collect.

Here's the link to the full document:

http://edocket.access.gpo.gov/2008/pdf/E8-1891.pdf

Edited March 13, 2011 by BV80

[oldguy47]

I agree with you opinion but, by informing them that they do not have permission and they are breaking the law (TCPA) you have evidence that they are willfully and knowingly violating the law. This moves the standard $500 per violation to $1500 per violation, not bad for taking time to write and send a letter.

[BV80]

If you never gave the OC your number, the CA got it on their own. Needless to say, they won't be able to use the excuse that they got it from the OC, because the OC won't have it. If a CA or JDB calls more than a few times leaving recorded messages, that's willful considering they know they didn't get the number from the OC.

My purpose in posting this was not to nail the OCs so much as the CAs and JDBs. It's especially helpful if you end up needing a counterclaim.

[Flyingifr]

Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.

If you Do file a TCPA action against either a CA or a JDB, in light of this statement be sure to sue the OC also. I am just sure that will just thrill them.

[oldguy47]

But it must be "willfully and knowingly" without any proof of booth $500 a call, if you inform them and came prove it $1500. Willfully by itself $500 a call, you do not have to write the letter but for $1k a call extra well worth it IMHO.

[BV80]

Actually, it's willfully OR knowingly. Besides, if the OC did not provide the number, then the CA or JDB got it on their own. Therefore, that's both willfully and knowingly.

[oldguy47]

You are right "or" but, good luck with that in court, best frame your argument well. Can’t see how you convince a judge that they got the number on their own so it is willful or Knowing, They knew it was a cell how? You prove they knew about the TCPA how? You prove they did not have a system to prevent this that broke down this one time how?

No matter how they got the number you’re a long way from proving willfully or knowingly just because you did not give the number to them or the OC. In the end one letter can prove willfully and knowingly, and if you just got to go to court you still have all the calls before the letter.

I got my money from the OC and the issue cleared up (they said I owed them about $30K, I did not), They claimed they had my consent and played lots of games, I handed them a copy of the letter and copy of green card and they folded, I never saw the inside of the court room.

[BV80]

They knew it was a cell how?

Have you ever done a reverse phone lookup? It will tell you if the number is a cell phone number.

You prove they knew about the TCPA how?

It's their job to know about the laws that govern their industry. Asking how they know about the TCPA is the same as asking how a construction contractor knows about OSHA.

You prove they did not have a system to prevent this that broke down this one time how?

I wouldn't have to prove it. All I have to prove is that they made the calls. If they claim their system broke down, they're the ones that have to prove that.

In the end one letter can prove willfully and knowingly, and if you just got to go to court you still have all the calls before the letter.

I agree with you. I merely pointed out what the FCC wrote. The reason the FCC wrote the document was because ACA International requested clarification. The fact that the FCC wrote it in response to a professional debt collection organization is pretty compelling.

It's useful information for people who never knew about the TCPA and have numerous messages on their voice mails left by recorded voices. If they never gave out their cell numbers and didn't know they could stop the calls, they have legal recourse. The debt collector won't be able to use the excuse "but they didn't revoke permission!"

[oldguy47]

Have you ever done a reverse phone lookup? It will tell you if the number is a cell phone number.

Well yes, I would point out that with number portability and the way we change numbers now there is every good chance it is wrong. The government does not require anyone to refresh their DB everyday and this could be the brake down that they could point to.

It's their job to know about the laws that govern their industry

You are correct but, failing to do your job right does not prove that you knew about a law and as they always say ignorance is no excuse. However you will still need to prove Knowing or willfully, and they should have know does not prove it, they got the number on their own does not prove it. Finding other suites, getting their procedures, Identifying key figures in the organization that were trained or have been involved with this are ways to prove it.

If they claim their system broke down, they're the ones that have to prove that

One would like to think that but, if they will forge documents, use “certifiers" that have been dead for years, and pull the BS that most of them do what’s one more faults affidavit saying “Oh my we just found that X caused our system to be inaccurate or break down, we have issued new policy etc”

If you think they will just give you money without a fight I would recommend you rethink, I had them cold, I was upfront and said I have letters telling you, I have recorded conversations with your people, I gave them dates of the letters and calls. They played games, “well we were going to take that number out of the system on X, you must have done something to stop it”, “That was the only number we had” and more and more. It was not until I met with them and informed them that I intended to ask for $1500 per call, handed them copies of the letters and green cards, and said that if we could not reach a settlement in 15 min I was also calling every news org in the area with the story.

I applaud your motives as TCPA has been quiet here for a while and can be a powerful tool but, some of us have been down this road , we have posted our experience on this board and I (and I think others) will always recommend: Give them plenty of rope to hang themselves with before you make your move, at 500 a call it takes a while to reach the stars at 1500 you get there fast.

Edited March 16, 2011 by oldguy47