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Potential TCPA Lawsuit


Rogue198
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Morning all,

 

So, last summer, in addition to our FDCPA lawsuits our attorney drafted and had us send very general "we revoke expressed consent for calls to our cell phone" letters to a couple of other collection agencies that were calling us.

 

Fast forward to this summer, one of those agencies began calling my cell using an auto-dialer.  I of course notified my attorney, he's already had me sign a contingency retainer agreement and we made records of the call logs & recording of the voicemails left on my cell.

 

My question is...would the revocation we sent last year still be in effect if this was a newly placed account?

 

Say Agency 1 was calling me about account A, we send written revocation, different creditor places account B and agency resumes calls.  As I said, the letters sent were very general, no specific accounts even referenced, just a basic, I revoke expressed consent paragraph.

 

I know how the agency I worked for handled these kind of situations, but we were extremely proactive about these kind of things, before an account was assigned, it would be scrubbed against any prior C&D, litigation, do-not-call and sent back to the creditor if it matched but does the agency have a possible out?

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@Rogue198

 

 

I disagree with your attorney's advice to "generally" revoke consent to receive calls.  In my opinion, you should have provided the account numbers for the accounts that were currently in collection.   I know of no case law that requires the provision of an account number to revoke consent, but  I also  know of no statute or case law that says you can revoke consent for future collection accounts.   Here's the reasoning:

 

What if you're not the only person with your name?   You cannot revoke consent for another person.   If you told the debt collectors not to call you, John H. Doe, then based upon what you seem to be implying, those debt collectors could never call ANY John H. Doe.

 

Cell phone numbers can be reassigned.  If you get a new number, your old number is assigned to someone else.  In Soppet v. Enhanced Recovery, the 7th Circuit Court of Appeals ruled that no one, neither consumer nor a phone company, has property rights to a particular number.  If you told the debt collectors to never call 555-123-4567, based upon what you seem to be implying, they could never call that number no matter to whom that number is assigned.  You'd basically be revoking the debt collector's right to call anyone to whom that number is assigned, but you don't have that right.

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@BV80  But they didn't tell just anyone not to call that person at that number...they told the one debt collector that must most assuredly know that they revoked any previous permission to call them there.  Being that it is a cellphone, they are supposed to have permission to call the cellphone in the first place.  If the company is using an autodialer (don't know of any off the top of my head that don't), they have to have permission.

 

"The FCC has determined that debt collection calls are not telemarketing calls.  Therefore, under the rule the FCC has stated that with respect to autodialed or prerecorded debt collection calls, to the extent that they do not contain telemarketing messages, would not require any consent when made to residential wireline consumers, but require either prior written or oral consent if made to a consumer’s wireless number referring to 47 C.F.R. § 64.1200(a)(1)."

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@CommoSGT

 

As I stated, there is no statute or case law that I know of that says you can send a letter to a debt collector that revokes calls for future debt collection accounts.   Again, the reason is because of the possibility of same or similar consumer names and reassigned cell phone numbers.

 

Could a consumer named John Smith tell a debt collector to never call "John Smith" again? 
 

 

If the company is using an autodialer (don't know of any off the top of my head that don't), they have to have permission.

 

 

 

Autodialers are based upon phone numbers.  Cell phone numbers can be reassigned to new customers.  What statute or case law says that a revocation to call a particular number prevents a debt collector from EVER calling that number?

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@BV80

 

 

@CommoSGT

 

As I stated, there is no statute or case law that I know of that says you can send a letter to a debt collector that revokes calls for future debt collection accounts.   Again, the reason is because of the possibility of same or similar consumer names and reassigned cell phone numbers.

 

Could a consumer named John Smith tell a debt collector to never call "John Smith" again? 
 

 

 

Autodialers are based upon phone numbers.  Cell phone numbers can be reassigned to new customers.  What statute or case law says that a revocation to call a particular number prevents a debt collector from EVER calling that number?

 

That's where my thinking is going BV.  The only thing I can think of is that the letter's stated, "blah blah blah, revoke expressed consent to call (my cell #), sincerely, Rogue198

 

The new messages from this agency are to my number and specifically address to me.

 

I.e - they know I revoked their permission to call me @ this number, and now they're again calling for me at the same number.

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@Rogue198

 

 

Also, again, I know of no case law that says revoking permission for a particular number prevents them from EVER calling that number because a number can be reassigned to another cell phone customer.

 

But perhaps they're supposed to have procedures in place to associate that particular number with your name.  Then if the number is ever reassigned to a different cell phone consumer, the collection agency would be able to call it if they received a collection account in his name.

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@BV80

@debtzapper

@Rogue198

 

Info from the July 2015 TCPA Order (seen by the FCC as a clarification but seen otherwise by industry).  I read the highlighted to say that they can call once under the assumption that it may be a new person.  But, I don't buy that calling a number that you knew (or should have known) was assigned to Bob Smith who expressly withdrew consent for you to call him at the number.  If it is a new account and you call the number looking for the same individual....tough news for the company.  There is no reason for them to call number X and ask for Bob....unless they are looking for him, they would be opening themselves up to all kinds of stupidity if they call number after number looking for Bob.

 

4. Reassigned Telephone Numbers:  Because of the way the TCPA was drafted, there has been debate in TCPA circles over whether a call to a telephone number that had been reassigned (without the knowledge of the caller) from a consenting consumer to a new consumer can be actionable under the statute.  The FCC addressed a number of petitions that raised this question by “clarify[ing] that the TCPA requires the consent not of the intended recipient of the call, but of the current subscriber (or non-subscriber customary user of the phone)” that actually receives the call.  The FCC acknowledged, however, that because callers cannot always know that a telephone number has been reassigned, liability for the first call to a reassigned number does not necessarily lead to TCPA liability.  In so finding, the FCC acknowledged that it “do[es] not presume that a single call to a reassigned number will always be sufficient for callers to gain actual knowledge of the reassignment,” but it nevertheless found “that the one-call window provides a reasonable opportunity to learn of the reassignment.”  Callers “may reasonably be considered to have constructive knowledge” of the reassignment if “the caller makes the first call without reaching that original subscriber.”

 

Also read: http://www.ballardspahr.com/alertspublications/legalalerts/2014-07-15-fcc-clarifies-tcpa-consent-standard-for-collection-calls-to-cell-phones.aspx

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@debtzapper

 

@Rogue198

 

What does your lawyer say about all this?  Is he experienced in handling TCPA cases?

 

Extremely, he's the senior partner in the firm I used last year for our FDCPA suits & counter-.  He never even asked if it was possibly a new account, just had me co-ordinate with his para, get recordings of all voicemails left, keep a photo record of my call logs and every couple calls or so, actually answer, don't have to say anything, just enough so the CA's phone records will show a connections.

 

I agree with this, cause it's where I'm thinking he's going:

 

But, I don't buy that calling a number that you knew (or should have known) was assigned to Bob Smith who expressly withdrew consent for you to call him at the number.  If it is a new account and you call the number looking for the same individual....tough news for the company.  There is no reason for them to call number X and ask for Bob....unless they are looking for him, they would be opening themselves up to all kinds of stupidity if they call number after number looking for Bob.

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