“Can a debt collector call my cell phone?” “Can a collection agency call my cell phone?” The answer is “it depends” and the answer often depends upon whether the consumer provided the original creditor with their cell phone number (even an _old_ cell phone number) and technical details concerning the hardware and software that the debt collector uses to call to consumers.
WHAT IS THE TCPA?
The Telephone Consumer Protection Act of 1991 (“TCPA”) provides that it shall be unlawful for _any person_ to :
to make any call (other than a call made for emergency purposes or maw with the prior express consent of the called party) using any automatic 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, unless such call is made solely to collect a debt owed to or guaranteed by the United States.”
See, 47 U.S. Code Sedtion 227(b)(1)(A)(iii) (2016). The exemption for calls to collect a debt “owed to or guaranteed by the United States” was added to the TCPA on November 2, 2015. Claims arising before this date, may (or may not) be valid. Calls made solely to collect educational loans owed to or guaranteed by the U.S. Department of Education would be exempt from this section of the TCPA. This exemption would also apply to mortgage loans originated by or guaranteed by Veterans’ Administration and HUD but not independent entities such as Fannie or Freddie.
WHAT IS AN AUTOMATED TELEPHONE DIALING SYSTEM?
The Telephone Consumer Protection Act (“TCPA”) restricts the use of automated dialing machines applies to debt collectors who call cell phones. At least several federal trial courts have mistakenly applied a ruling issued by the Federal Communications Commission which allows debt collectors to use automated dialers to call land-lines without being restricted by the TCPA. So, consumers should hire counsel who is experienced in representing consumers in TCPA cases.
If there is a couple of seconds of silence on the line after you pick up the call, odds are great that the caller is using an auto-dialer or predictive dialing device. But, these delays are not necessarily conclusive that the caller used an “automated telephone dialing system” in the sense that the TCPA and the Federal Communications Commission use the term. The TCPA defines the term :
“‘automated telephone dialing system’ means equipment which has the capacity —
(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and
(B) to dial such numbers”.
TCPA, 47 U.S.C. Section 227(a)(1)(A) and (B) (2014). The defendant debt collectors often argue that they did not use their robo-dialing equipment to dial numbers in “random” order or using a “sequential number generator”. But, the equipment usually (but not necessarily always) has the capacity to dial numbers randomly or sequentially. Defendants often deny that their equipment has the capacity to dial numbers randomly or sequentially; in these cases it is necessary for the consumer’s lawyer to depose the debt collector and even retain an expert witness.
Defendants are increasingly arguing that their dialing equipment is not even equipped to dial numbers randomly or sequentially. The Federal Communications Commission (“FCC”) has ruled that if the equipment dials telephone numbers without human intervention, then the equipment is an automated telephone dialing system (“ATDS”). At lease one defendant has appealed the FCC’s ruling to an appellate federal court on the grounds that the FCC does not have the authority to interpret the TCPA. This case raises complicated issues of law. Fortunately, many consumers can avoid the complicated issue whether the robo-dialing equipment is an ATDS.
SAVE THOSE PRERECORDED MESSAGES!
The TCPA also restricts the use of pre-recorded messages and/or text messages to cell phone answering devices so consumers. Consumers are very wise to save every one of the messages and to document the date and time of each of them. Although the odds are extremely high that a collection agency that left pre-recorded messages also used an automated telephone dialing system, consumers who save the messages usually establish liability by using the prerecorded messages.
WHAT IF THE CONSUMER PROVIDED ANY CELL PHONE NUMBER WHEN THEY APPLIED FOR CREDIT?
If the person who receives the collection calls gave the original creditor express permission to call their cell phone, then such permission protects the collection agency or debt buyer. If the person who receives the calls never even owed the debt, the debt collector can not have “express permission”.
According to a Federal Communications Commission decision, collection agencies may call consumers who provided their cell phone numbers to the original creditor.
If the consumer did not provide their cell phone number to the original creditor or the debt collector, the debt collector violates the Telephone Consumer Protection Act (“TCPA”) every time it calls the consumer’s cell phone by using an auto-dialer or predictive dialing machine.
THE TCPA ALLOWS PREVAILING CONSUMERS TO RECEIVE $ 500
TO $ 1,500 PER CALL
Debt collectors who violate the TCPA are liable for $ 500 per violation and, if the violation is willful, up to $ 1,500 per call.
CAN CONSUMERS WITHDRAW PERMISSION TO CALL THEIR CELL PHONE?
The question whether consumers who provided their cell phone number to the original creditor or a subsequent debt collector can revoke the express consent had not been decided by any federal appellate court until recently. The consumers won a major victory which is now binding law in the federal trial courts in Pennsylvania, New Jersey and Delaware and, more importantly, is likely to be highly persuasive authority in other trial courts. On March 28, 2014, the United States Circuit Court of Appeals for the Eleventh Circuit issued an opinion which provides that, under Florida law, cell phone users can verbally withdraw permission for a creditor (or debt collector) to call their cell phone using an ATDS and overturned a federal trial court’s order which rejected the consumer’s case because he did not withdraw his permission in writing. See Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (Cir. 11th, 2014).
Consumers who provided their cell phone number to the debt collector (but not the original creditor) and do not wish to continue to receive collection calls on their cell phone should send the debt collector a letter via certified mail / return receipt requested stating that :
“I don’t believe I ever gave you or anyone else permission to call me on my cell phone about the account you allege I owe. If I am mistaken, I hereby revoke any permission that I may have given you or anyone else to call me on my cell phone about this account. My cell phone number is [NUMBER XXX-XXX-XXXX]. Do not call me on this number again.”
Again, several federal trial courts have ruled that, absent statutory authority other than the TCPA, consumers can not revoke their prior express consent. Other federal courts have held that verbal revocation is insufficient. The TCPA is a developing area of the law. Consumers benefit from hiring experienced counsel who is admitted to practice in the state where they reside.
Debt collectors often unleash their robo-dialers on cell phone users who do not even know the person who incurred the debt. At least one federal appellate court has ruled that the TCPA protects the cell phone user and suggests that the industry scrub cell phone numbers more thoroughly using manual dialing.
Because TCPA violations occur when the caller causes a phone to ring, it is important to log all of the calls including the hang-ups. (A Collection Agency Harassment Log is available on the navigation bar at the top of this page.)
The messages that consumers receive on their cell phones often violate the Fair Debt Collection Practices Act (“FDCPA”). Consumers should save all of their messages that they receive. The damages allowed by the FDCPA are in addition to any damages available under the TCPA.
If you are receiving calls from collection agencies on your cell phone, you may contact me by completing the Collection Agency Harassment Form in the right hand column of this page.
If you are a Florida resident, you are also welcome to call me at (407) 648 – 9050 or complete the Collection Harassment form on the right hand column of this page. I will contact you to discuss your situation and how I may be able to help you.
If you live outside Florida, I will try (as a courtesy to you) to provide you with the name and contact information for an experienced phone harassment lawyer who is licensed to practice law in your state.
For additional educational articles about the TCPA, please click here.
(C) 2011 – 2016 Donald E Petersen
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