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What does "to initiate any telephone call" mean?


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Here is the section of the TCPA I am referring to:

(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—

(B) 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);

I don't understand why the TCPA said initiate. In this context, what does it mean to initiate? I know it means to start something.

I have some phone calls recorded where there were no artificial or prerecorded voices recorded...just a few seconds of blank space.

Does the JDB calling have their auto dialer set up to play the artifical voice if the consumer answers then, if the consumer does not, program their software to hang up without leaving a message?

Edited by Downto0
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Here is the section of the TCPA I am referring to:

(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—

(B) 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);

I don't understand why the TCPA said initiate. In this context, what does it mean to initiate? I know it means to start something.

I have some phone calls recorded where there were no artificial or prerecorded voices recorded...just a few seconds of blank space.

Does the JDB calling have their auto dialer set up to play the artifical voice if the consumer answers then, if the consumer does not, program their software to hang up without leaving a message?

From what I understand, it means the CA or JDB has to make the phone call to you. If you make the call, you're the one initiating it.

I don't know how an autodialer can tell the difference between a live person and a voice mail message, but who knows? Maybe that's possible. It could also be that the JDB is using an autodialer to call, but then a live person takes over and just doesn't leave a message.

Without a prerecorded message, proving an autodialed call would take some work. We know that, more than likely, the call's you've received are autodialed, but knowing and proving can be 2 different things.

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This law was written primarily to protect people from telemarketers, who could potentially run up your telephone bill by calling with endless "offers" and sales pitches. Legitemate calls concerning a legitemate debt collection fall into another category. It's not exactly exempt, it's just harder to prove. Again, the cost of litigation far exceeds the grand you can get.

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This law was written primarily to protect people from telemarketers, who could potentially run up your telephone bill by calling with endless "offers" and sales pitches. Legitemate calls concerning a legitemate debt collection fall into another category. It's not exactly exempt, it's just harder to prove. Again, the cost of litigation far exceeds the grand you can get.

The TCPA allows $500 for an illegal call. If there are multiple calls and all of them are in violation of the TCPA showing willful non-compliance, the law allows for $1500 per call (after the 1st one or two calls).

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I don't understand why the TCPA said initiate. In this context, what does it mean to initiate? I know it means to start something.

The act of deeming the "initiating" of the call as violative is because the legislators intended that the call did not have to be answered or "received" in order to constitute a violation.

If the caller simply places a call that violates the statute, that is sufficient to create liability.

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I thought there was a cap like the FDCPA? I wish they would clarify these laws when they write them.

§ 227

(3) Private right of action

A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State—

(A) an action based on a violation of this

subsection or the regulations prescribed

under this subsection to enjoin such violation,

(B) an action to recover for actual monetary

loss from such a violation, or to receive

$500 in damages for each such violation,

whichever is greater, or

© both such actions.

If the court finds that the defendant willfully

or knowingly violated this subsection or the

regulations prescribed under this subsection,

the court may, in its discretion, increase the

amount of the award to an amount equal to

not more than 3 times the amount available

under subparagraph (B) of this paragraph.

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Yea, I've always read the TCPA as having no limitation to the damages for the phone calls which made the violations. The exceptions are that you can only triple the $500 to $1,500 for each phone call and, the more flagrant problem, is that there are no allowances for attorney fees. The attorney has to divide the phone violation damages with their client. Take it from me, they don't like those odds with a consumer who only has a handful of violations...but this is an entirely different issue.

I don't know how an autodialer can tell the difference between a live person and a voice mail message, but who knows?

My guess is the same way that an autodialer can tell someone answered the call and alerts a representative to come to the phone.

Here's my theory. Since a lot of collectors think that it may be a kiss of death to leave a message because they cannot tell if they are calling a cell phone, or not, they instruct their system to hang up if no one answers yet, if someone would answer, they would instruct their system to send an artificial voice to instruct the consumer to wait for the next available representative.

As you say, some collectors set their system up to alert a representative, without using artificial voice,if a consumer answers or, if the consumer does not answer, to hang up. Without the recorded artificial voice one could only speculate as to how they set up their system.

Legitemate calls concerning a legitemate debt collection fall into another category

Exactly. The FCC has exempted all collection calls to land lines, not cell phones. However, in Watson v NCO, that court ruled that the FCC had not considered mistakened calls. There are exceptions to the exemptions.

Well, okay, I get the initiating part. It means that they must make the call to me but that call does not need to result in a recorded message. The problem for me, then, is to figure out how to establish how they had their system set up.

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Exactly. The FCC has exempted all collection calls to land lines, not cell phones. However, in Watson v NCO, that court ruled that the FCC had not considered mistakened calls. There are exceptions to the exemptions.

Well, okay, I get the initiating part. It means that they must make the call to me but that call does not need to result in a recorded message. The problem for me, then, is to figure out how to establish how they had their system set up.

Collection calls to cell phones are allowed as long as you gave you prior express permission. If you ever gave your cell number to the OC, such as on the application. or possibly if you included it on a check, that's express permission. The OC is then allowed to give it to CAs.

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Well, okay, I get the initiating part. It means that they must make the call to me but that call does not need to result in a recorded message. The problem for me, then, is to figure out how to establish how they had their system set up.

If you file suit you can use discovery to try to force the needed information and documents from them or hopefully get them to settle so they do not have to respond to your discovery (and the more than likely needed motion to compel as they obviously are not going to want to give this information up).

There is probably a very high likelihood that most/all calls from a CA were made from an autodialer, it comes down to forcing their hand to provide the documents or make them want to settle. Like BV80 said though if they are collecting for an OC that you gave permission to call your cell phone than they also have permission.

I sued a JDB, pro se, for FDCPA and TCPA violations in state court, 12 calls that I had no proof were autodialed but from the pattern of how they were made to my and my wife's phones I felt it was highly likely they were autodialed. Since it was a JDB I was operating under the premise that even if I had given my cell to the OC they did not have my permission to call (I may have been wrong on this point) but even if they were legally allowed this would have been diffucult for them to prove.

I also believe they were using a Caller ID spoof, which has no private right of action but has serious fines.

I sent discovery right after the complaint was served. They did not answer either and I got a default judgment with a hearing scheduled on damages which I was prepared for and submitted a memorandum in support of claim for damages. Several weeks before the hearing their attorney contacted me and we ended up settling, they were going to file a motion to vacate the judgment and I took the easy money instead of the court battle.

I don't know if I could have got the proof that the calls were autodialed so I suppose it is a risk. They may be able to claim it was a frivolous lawsuit but I also had the FDCPA violations that I think made it a more solid case for me.

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Right. To be express it has to be given on a loan application. Even then, it depends upon which district you are in as to whether this is even express consent.

In Sengenberger v Credit Control (7th district), the court quoted the FCC as saying:

Because we find that autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the “prior express consent” of the called party, we clarify that such calls are permissible. We conclude that the provision of a cell phone number to a creditor,e.g., as part of credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt. FCC 07-232, ¶ 9.

The court went on to say that:

Calls placed by a third-party collector on behalf of that creditor [to whom prior express consent was provided] are treated as if the creditor placed the call.

The court did not rule on this particular issue as they felt that they did not have enough information. They did decide, however, that once Sengenberger sent a letter to the collector revoking the pec that the collector did violated the TCPA in a future call.

In Edeh v Midland (8th circuit):

...Midland argues that it obtained Edeh’s phone number when it bought Edeh’s debt, and that it “reasonably relied upon the seller of the debt to provide the appropriate contact information” for Edeh. Gustad Aff. Ex. B at 14 [Docket No. 46-1].

That is beside the point. Midland’s call to Edeh’s cellular phone was permissible only if it was made “with [Edeh’s] prior express consent.” 47 U.S.C. § 227(B)(1)(A)(iii) (emphasis added). “Express” means “explicit,” not, as Midland seems to think, “implicit.” Midland was not permitted to make an automated call to Edeh’s cellular phone unless Edeh had previously said to Midland (or at least to Midland’s predecessor in interest) something like this: “I give you permission to use an automatic telephone dialing system to call my cellular phone.” Midland has no evidence that Edeh gave such express consent. In fact, uncontroverted evidence, in the form of Edeh’s affidavit, shows that Edeh did not consent to receive automated calls on his cellular phone. Edeh Aff. ¶ 10 [Docket No. 41-3]. The Court therefore overrules Midland’s objection to the R&R as it relates to TCPA liability.

Luckily for me, I live in the 8th district.

Back to the topic...the calls made to me were on my land line so I need to establish that they were initiated using an artificial or prerecorded voice to deliver a message. If one is getting these calls from a huge well established JDB, could not one assume that the JDB would have the fanciest system with all the bells and whistles? Would not this system use artifical voices? Or, could it be that the JDB could turn off the artifical voice option and they would then not be calling using an artifical voice?

My thoughts are that I am going to include the silent messages in my claim and say that their system is set up to call and use an artifical voice if the consumer answers and that at other times it leaves recorded messages. I do have some recorded messages. As PC 1978 said, I can initiate Discovery and let them verify how their system was set up. It may be enough of a hurdle for them that they will settle.

Edited by Downto0
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Back to the topic...the calls made to me were on my land line so I need to establish that they were initiated using an artificial or prerecorded voice to deliver a message.

Are you able to get around the existing business relationship [EBR] exception for residential landlines?

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Are you able to get around the existing business relationship [EBR] exception for residential landlines?

If the OP is dealing with a CA for the OC, probably not. If it's a JDB, then it might depend on proof of ownership of the debt in order to create that relationship.

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Are you able to get around the existing business relationship [EBR] exception for residential landlines?

I'm going to try. My persuasive argument would be from Watson v NCO where the court had ruled that the FCC did not consider mistakened calls to nondebtors when they exempted all collection calls to land lines.

If it's a JDB, then it might depend on proof of ownership of the debt in order to create that relationship.

It is a JDB who had been calling me after I had clearly sent them 3 Cease Communication Orders. The JDB also lost their case against me due to no assignment,ownership of the debt. Similar to the Watson ruling, the FCC has not considered calls that were under a CC Order or where the collector had no assignment/ownership of the debt. There may be a whole laundry list of exceptions to the exemptions. Calling while a debt is in Bankruptcy proceedings may be another, for example.

Here is what the Watson court said:

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).

Defendants rely on the FCC’s commentary and regulations to assert that all debt collection calls, including those erroneously made to non-debtors, are exempt from TCPA. The Court disagrees with Defendants’ interpretation.

The Court notes that the FCC has not directly addressed the issue of erroneous debt collection calls. In promulgating these regulations, the FCC proceeded from the premise that 2 “all debt collection calls involve a prior or existing business relationship.” 7 FCC Rcd. 8752. Since an erroneously called non-debtor has no such existing business relationship, it follows that the purview of the FCC’s exemption does not extend to the type of calls made in this case.

...the FCC’s pronouncement does not address the privacy rights implicated here. The fact is, by virtue of staying out of debt, a non-debtor has vastly greater privacy rights than someone who has fallen into debt. While the FCC has declared that a debtor’s privacy rights are not adversely affected when he receives debt collection calls, the Court is convinced that a nondebtor’s rights are in fact violated when he is subjected to repeated annoying and abusive debt collection calls that he remains powerless to stop.

My case is similar because the JDB had not provided assignment/ownership. The JDB has been given the chance but failed to establish that they were contacting the right person. My stance is that they were not.

Mr case differs due to the CC Orders. It is my argument that the JDB has invaded my right to privacy which the CC Orders are intended to ensure. A law or statute loses its value if not obeyed.

If you don't answer and they don't leave a message, what do you have as evidence?

I do have 5 recorded messages from them where they used a recored voice. One could assume that they are operating a system which is capable of initiating a call to a consumer using artificial or recorded voices. I would further argue that all their calls are made using an artificial or prerecorded voice to deliver a message. As was said earlier, there does not need to be a recording, only that that type of system was used to initiate the calls.

I figure I'll settle before going to court but this case would probably set precedent as I have not read where a court had dealt directly with my issues...just indirectly.

I have a big claim for other statutory damages so the TCPA claim may be dropped. I'm just researching all angles to get a feel for their viability.

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B) 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);

It doesn't say the call MUST be made using an automatic or predictive dialer for it to be illegal. If there's no business relationship, just using the artificial or prerecorded voice is illegal.

2(B) states:

(B) may, by rule or order, exempt from the requirements of

paragraph (1)(B) of this subsection, subject to such conditions

as the Commission may prescribe -

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

(ii) such classes or categories of calls made for

commercial purposes as the Commission determines -

(I) will not adversely affect the privacy rights that

this section is intended to protect; and

(II) do not include the transmission of any unsolicited

advertisement;

I don't think their calls would be exempt under 2(B).

Edited by BV80
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Right. I don't think their calls are exempt either. I have 5 recorded phone messages tucked away. What I am trying to do is see if the blank recorded phone calls are illegal. Did the JDB initiate these calls using a artificial or pre-recorded voice? I don't know for sure because nothing was recorded.

The confusing part for me now is "to delivery a message". Does this mean that the JDB cannot initiate a call to a debtor for the purpose of delivering a prerecorded message even if a message is not delivered? I think so.

If so, my thoughts are that all calls from a JDB initiated on a system capable of leaving artificial or prerecorded messages are violations...even if nothing is recorded. Even hangup calls would be a violation.

I don't have a problem with the 5 phone calls as the JDB did use artificial prerecorded voices to leave a message. The JDB has no assignment thus no ebr. The JDB has been issued 3 CC Orders thus the invasion of privacy.

I'd like to include the other 200 calls from the JDB for obvious reasons. Is it enough to argue that their system uses artificial or prerecorded messages and that by initiating calls to me using that system each of those calls are also a violation?

What would their possible counter claim be? We dialed the other 200 calls by hand? No one would believe that. We used the same system but programmed the system to just hang up if a answering machine answered? I don't think so. They still initiated the calls using a artificial or prerecorded message. The JDB just instructed their system to hang up instead.

I'd like to see the notes on this section of the TCPA. The fact that Congress did not say the JDB actually had to leave a message is confusing to me. I keep going back to the thought that the JDB only needed to have a system in place which had the capability of leaving such a message. If this is the case then all 200 calls are violations.

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I have a copy of the ruling on my hard drive. I did do a few searches for "residential" and "initiate" just to refresh my memory. I could not find any help to resolve my situation.

My best persuasive argument is with the Watson case where the court brought out the fact that the FCC's declaration that all collection calls have ebr. It was made obvious that a mistakened call to a nondebtor did not have ebr. It opened the door to other debt collection calls which would also not have ebr.

It would be my argument that a collector who has had their case dismissed in court, with or without prejudice, for lack of assignment has not established that they have ebr. In fact, I would go so far as to argue that it was established that they did not have ebr.

Secondly, even if a creditor friendly court would want to think that the collector probably could establish ebr if they wished to spend the money, there is the privacy issue guaranteed by the CC Orders. Is not a consumer's privacy the purpose of the CC Orders in the first place?

Congress gave the collector specified remedies to contact the consumer after CC Orders were issued which would not raise to the level of 200 calls, regardless to whether a message was left or not.

I think I have a viable argument. The problem is establishing that the 200 hangup calls were intiated using a artificial or prerecorded voice. We already decided that a messages does not need to be recorded, just that the call needs to be initiated by the collector using a system capable of delivering an artifical or prerecorded message.

At this point, I would argue that the JDB has already initiated 5 calls using an artifical or prerecorded voice as evidenced by the 5 captured recordings I have on my hard drive. I would further argue that this is the system they use for all their calls. I believe I would have supplied prima facie evidence to support my claim and it would be up to the JDB to show where they did not use an artifical or prerecorded voice for all their calls. Instructing their system to not leave a messages does not negate that they initiated the 200 calls using an artificial or prerecorded voice.

I have a new group of NACA attorney's viewing my case. I am sending this argument to them to see what they think. These guys seem to be more government funded and willing to take cases normal private NACA attorneys won't. I'll keep you guys informed.

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My best persuasive argument is with the Watson case where the court brought out the fact that the FCC's declaration that all collection calls have ebr. It was made obvious that a mistakened call to a nondebtor did not have ebr. It opened the door to other debt collection calls which would also not have ebr.

It would be my argument that a collector who has had their case dismissed in court, with or without prejudice, for lack of assignment has not established that they have ebr. In fact, I would go so far as to argue that it was established that they did not have ebr.

None of that argument is required if you have sent them a Cease Communication. The FCC has repeatedly stated that EBR can be severed for the purposes of the TCPA by the consumer simply telling the caller to not call. Look at the FCCs commentary of 1992 and 2003 I believe, however there are others.

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I think you have a valid point. The CC Order would definately sever the ebr. How could there be ebr if one of the parties told the other to never talk to them again?

The CC Order actually goes farther than simply severing the ebr, it also invokes privacy rights which negates the second exemption that the FCC gave the collectors. The FCC exempted commercial calls that do not adversely affect privacy interests and do not transmit an unsolicited advertisement. In my case, the collection calls do not transmit an unsolicited advertisement but they do adversely affect my privacy interests.

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