PRA tcpa questions

[BTO429]

Need advise from the tcpa experts ....this will be my first tcpa claim

 

PRA has been calling me for over a year now. I have told them on numerous occasions that I refuse to pay. This is over a gas bill from 2002 I have told them its past sol. They have even told me they know it is and they will not file suit over it.

 

They do not really harass me, they call 2 to 3 times a month. I know they skip traced my number because I did not have a cell phone back then. Yes it is my cell that they call. nd we all know that PRA uses auto dialers.

 

I know I did not give them express permission to call my cell. Today they tried to talk me into letting them put my number in their auto dialer system, they thought they would weasel my express consent by implying something else. It didn't work and they were upset but OH well.

[homeschool mom]

Send CEASE & DESIST Letter --- for template googlesearch FredSchwinn - San Jose Attorney.  This will STOP them dead on tracks!

 

Hope that helps

[BTO429]

I already know about this,,,,,,,no need to send it,,, I want the calls to add up.

[kutuzov]

Cease and desist or just sue them, every call to your cell phone is a violation in itself, 500 per violation. A poster post a very good case law of TCPA cases, I'll check is recent.

[kutuzov]

http://www.creditinfocenter.com/community/topic/320779-7-pg-tcpa-summ-from-nclc/#entry1251348

 

With that and the statutes itself you got plenty to play with.

[Clydesmom]

PRA wouldn't stop calling my cell phone and refused to validate.  I simply turned it over to a FDCPA attorney and they are filing suit. It is the only thing PRA understands.

[cjtx]

The cases above are a good start, but you need to do some more research. TCPA has some loopholes due to the fact that it hasn't kept up with the changes in technology and telemarketing/soliciting practices. Fortunately, there are some major amendments to become effective in October of this year that focus on written (or digital) explicit permission.

 

The worst offenders are experts at exploiting the loopholes.

 

For example, there was a case in which someone sued a company who called several times in violation of TCPA. It turned out it was a sub-contractor sending caller ID info that identified the solicitor they were calling on behalf of (not the sub-contractor) . Because TCPA's prohibitions are for "any person", the court decided that the prohibition applied to the sub-contractor. So the case was dismissed for lack of standing.

 

Btw, collection calls are deemed to have explicit permission due to the established business relationship exception. Even if you did not give them your number. In this case you need to explicitly revoke permission, through C&D to terminate the presumption of explicit permission for debt collection.

[kutuzov]

A C&D would be the way to go, after that just pile them up.

 

Also what are the main changes to the TCPA? I systematically remove any consent to place automated calls, use autodialers, etc. to all whom I got a contract with, so that said should I do something different?

[BTO429]

Indiana regulation of auto dialing machines. http://www.in.gov/legislative/ic/2010/title24/ar5/ch14.html

Only bad thing is this law does not give the petitioner the right to collect damages. Indiana's ato dialer law makes it a class c misdemeanor for violation with up to 60 days in jail and 500 fine for each violation,,,,,I have logged about 75 calls so far.

 

It also makes it illegal to use a dialer to call and leave artificial pre-recorded messages for skiptracing or can-be-reached numbers, like those ca's that call and leave a message that they have an important business matter to discuss with you.

[nascar]

Read up on In re: Portfolio Recovery Associates, LLC TCPA Litigation. If you have a decent TCPA claim against Portfolio, as long as the MDL case is pending, your case will likely get sucked into the black hole. Be patient.

[BTO429]

thanks nascar.

[BV80]

Btw, collection calls are deemed to have explicit permission due to the established business relationship exception. Even if you did not give them your number. In this case you need to explicitly revoke permission, through C&D to terminate the presumption of explicit permission for debt collection.

 

@cjtx

 

While collection is considered an established business relationship, that does not mean that a collector can call a cell phone using an autodialer without express permission.  That means the consumer must have provided the cell number to the OC or the collector.. 

 

One cannot revoke what was never provided in the first place.  In its 2008 Declaratory Ruling, the FCC stated that it's for the creditor to prove that express permission was provided. 

[debtzapper]

http://archive.recapthelaw.org/casd/340962/

 

 

You can read the original complaint here, although it has since been amended. And yes, seek out a FDCPA/TCPA lawyer.  If you can't find one your liking in Ind, there are national law firms such as www.lemberglaw.com  www.attorneysforconsumers.com

Scott Owens is a FL lawyer who takes TCPA claims nationwide. www.scottdowens.com

Also, Heyrich, Kalish and McGuigan, www.telemarketingattorneys.com

[debtzapper]

Here is a TCPA/FDCPA complaint filed in Ala. against PRA last Aug.

 

http://www.alabamaconsumerprotection.com/2012/04/fdcpa-and-tcpa-lawsuit-against-collector-portfolio-recovery/

[BTO429]

I am fully aware of PRA being sued around 700 times and their class action suits.

I know that in no way did I give the OC nor did I give PRA my cell number nor did I give them express consent. I have told them every phone call to stop calling because the debt is past the SOL: and I refuse to pay it. 

[BV80]

I am fully aware of PRA being sued around 700 times and their class action suits.

I know that in no way did I give the OC nor did I give PRA my cell number nor did I give them express consent. I have told them every phone call to stop calling because the debt is past the SOL: and I refuse to pay it. 

 

Have they left any prerecorded messages?  

[cjtx]

@BV80

 

There were several loopholes with respect to express consent. Different courts have interpreted the statute different ways and many give a lot of leeway to accept ambiguous, implicit, far reaching, tricky ways to "obtain" consent. For example: recorded messages stating "press 1 to listen to an important message for you" or "press 9 to speak to a customer service specialist". So the new amendments to the TCPA which become effective in October will eliminate most of the ambiguity and will make it a lot more difficult for solicitors to show there was explicit consent.

 

One cannot revoke what was never provided in the first place.

 

True. However, there is implicit consent, which many courts presume for debt collectors.

 

 In its 2008 Declaratory Ruling, the FCC stated that it's for the creditor to prove that express permission was provided. 

 

 

Are those FCC declaratory rules binding in court?

 

Many cases involving debt collectors have been thrown out due to the established business relationship exception and many courts refuse to require anything in writing to show consent.

[BV80]

So the new amendments to the TCPA which become effective in October will eliminate most of the ambiguity and will make it a lot more difficult for solicitors to show there was explicit consent.

 

@cjtx

 

If it makes it more difficult to show onsent, that's good for consumers. 

 

If you're referring to the 2012 FCC order, that has to do with telemarketing calls.

 

True. However, there is implicit consent, which many courts presume for debt collectors.

 

Which courts have ruled that "implicit consent" is sufficient to allow debt collectors to call a cell phone using an autodialer?

 

Are those FCC declaratory rules binding in court?

 

 

Yes. the FCC is the governing body of the TCPA.  Unlike the FTC which issued "opinion letters" regarding the FDCPA, a ruling is a different matter.

 

Many cases involving debt collectors have been thrown out due to the established business relationship exception and many courts refuse to require anything in writing to show consent.

 

 

Which courts have done so after 2008?

[cjtx]

Here is an interesting article citing several different court interpretations of what constitutes or whether you are allowed to revoke consent for debt collection.

 

http://dritoday.org/feature.aspx?id=542

 

Basically, some courts say the request must be in writing (because FDCPA requires it in writing), others argue that consent can be oral so revocation can also be oral, and even others argue that once you consent you can't take it back.

[cjtx]

 

Which courts have done so after 2008?

 

For example: Michael C. Worsham v. Account Receivables Management, Inc., No. JKB-10-3051 (D. Md. Nov. 22, 2011) (Bredar, J.)

 

in which the court decided that TCPA does not apply to debt collectors.

[debtzapper]

For example: Michael C. Worsham v. Account Receivables Management, Inc., No. JKB-10-3051 (D. Md. Nov. 22, 2011) (Bredar, J.)

in which the court decided that TCPA does not apply to debt collectors.

First, that decision was a non-published decision and it is not binding on the courts in the 4th Cir. Second, the court was referencing the MTCPA, the Maryland Telephone Consumer Protection Act, and not the federal TCPA.

Yes, the courts are divided on the issue of revocation of consent. See "Adamcik v. Credit Control, (W.D. Tex. 2011) and "Osorio v. State Farm," (S.D. Fla. 2012).

[BV80]

@cjtx

 

For example: Michael C. Worsham v. Account Receivables Management, Inc., No. JKB-10-3051 (D. Md. Nov. 22, 2011) (Bredar, J.)

 

in which the court decided that TCPA does not apply to debt collectors.

 

The court did not rule that the TCPA does not apply to debt collectors.  In that case, Worsham did not refer to a cell phone.  The court referenced Anderson v. AFNI.  In Anderson, a debt collector called a landline.  Considering they were referencing that case, the debt collector in Worsham would have called a landline.

 

The TCPA does apply to debt collectors who use autodialers to call cell phones.  The law is specific.  Anyone who calls a cell phone with an autodialer must have prior express permission.

 

See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Request of ACA Int'l for Clarification and Declaratory Ruling, 23 FCC Rcd. 559, 565 (Jan. 4, 2008). Pursuant to the FCC ruling, prior express consent is deemed granted only if the wireless telephone number was provided by the consumer to the creditor, and only if it was provided at the time of the transaction that resulted in the debt at issue.  Meyer v. Portfolio Recovery Associates, LLC, 696 F.3d 943, 948 (9th Cir. 2012).

 

The TCPA prohibits any person from calling a cell phone number "using any automatic dialing system or an artificial or prerecorded voice" unless that person has "prior express consent of the called party." 47 U.S.C. § 227(b)(1)(A)(iii).  Saunders v. NCO FINANCIAL SYSTEMS, INC., Dist. Court, ED New York 2012.

 

The TCPA regulates the use of telephones to contact consumers. Relevant here, it forbids the use of certain automated telephone equipment, including using "any automatic telephone dialing system or an artificial or prerecorded voice" to call a cellular telephone without "prior express consent" of the consumer.[12] 47 U.S.C. § 227(b)(1)(A)(iii).  Adamcik v. Credit Control Services, Inc., 832 F. Supp.2d 744, 748 (W.D. Tex. 2011).

 

 

[BTO429]

Exactly bv80  And for further measure I pose this question,,,if you never gave your cell to the oc then how can you revoke something that was never given in the first place......?    They will argue that I kept talking to them,,,,,my counter will be that every time I talked to them I told them I refuse to pay.

[cjtx]

The court did not rule that the TCPA does not apply to debt collectors.  In that case, Worsham did not refer to a cell phone.  The court referenced Anderson v. AFNI.  In Anderson, a debt collector called a landline.  Considering they were referencing that case, the debt collector in Worsham would have called a landline.

 

Here is part of the decision regarding TCPA:

 

The Telephone Consumer Protection Act of 1991 (“TCPA”), codified in 47 U.S.C. § 227,

was passed in response to numerous complaints from both consumers and businesses about

telemarketing calls, i.e., calls to market goods and services. Pub. L. 102-243, § 2. The Federal

Communications Commission, charged with the responsibility of implementing regulations to

support the TCPA, has also issued documents clarifying those regulations set forth in 47 C.F.R.

§ 64.1200.

 

In a memorandum opinion and order, the FCC emphasized that debt collection calls

fit within an exemption to the TCPA’s prohibition on prerecorded messages for calls that do not

adversely affect the privacy rights that statutory section 227( B ) is intended to protect and do not

include the transmission of any unsolicited advertisement. 10 FCC Rcd. 12391, ¶ 16 (Aug. 7,

1995). See 47 C.F.R. § 64.1200(a)(2)(iii) (exemption from prohibition for calls made for

commercial purpose but not including unsolicited advertisement or constituting telephone

solicitation); see also Anderson v. AFNI, Inc., Civ. No. 10-4064, 2011 WL 1808779, at *12

(E.D. Pa. May 11, 2011) (applying § 64.1200(a)(2)(iii) exemption to calls to nondebtors made

purely for purpose of debt collection). Worsham offers no evidence that the calls placed by

ARM to his telephone number included the transmission of an unsolicited advertisement.

 

 

The point was that there are many issues in TCPA that still result in rulings like this one. There is no consensus across the board and the FCC contradicting its previous rulings instead of clarifying the issues makes it more confusing for the courts who were familiar with the history of the statute which was originally intended to punish abusive telemarketers.

[cjtx]

Indiana regulation of auto dialing machines. http://www.in.gov/legislative/ic/2010/title24/ar5/ch14.html

Only bad thing is this law does not give the petitioner the right to collect damages. Indiana's ato dialer law makes it a class c misdemeanor for violation with up to 60 days in jail and 500 fine for each violation,,,,,I have logged about 75 calls so far.

 

It also makes it illegal to use a dialer to call and leave artificial pre-recorded messages for skiptracing or can-be-reached numbers, like those ca's that call and leave a message that they have an important business matter to discuss with you.

 

State law preempts TCPA. I'm not familiar with your state's laws but if there is no private right of action under your state's law, you can't sue using TCPA.