Author Topic: Using the Telephone Consumer Protection Act to your advantage  (Read 61644 times)

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Mischievous Smurfy

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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #15 on: March 24, 2007 01:12:36 AM »
I've got a "Ken Hughes" calling and leaving pre-recorded messages.  Looking him up, I found out he is from Merchants Credit Guide.  Since I wasn't home at the times he's called, I didn't know if he was calling my main # or one of my private numbers. I called back once referencing my main # and was told it was an erroneous call and that I wouldn't receive any other calls.  Now I've received another message so I think they called one of my other numbers. 

I'm thinking I don't have any violations so far. What I should probably do is call them back, tape recorder going, and give them both private #s to see if they can trace it that way.  I'll then tell them they have the wrong # and that they shouldn't call back.  If they call after that, I know it would be an FDCPA violation, but would it also violate the TCPA? What's the SOL on TCPA violations btw?

I have enough on my plate that I will leave usofa to be the expert ... usofa can correct me if I'm wrong .. I'm not going to look it up ..

On FDCPA ...  it is my belief that if they fail to identify thier employer (assuming of course it is actually a collection agency)  they are in violation ... because leaving thier own name is not "meaningful" identification ..

As far as TCPA .. If I'm not mistaken they can get away with only thier own name ..
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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #16 on: March 24, 2007 01:23:16 AM »
Well, the closest thing I could find in the FDCPA is the following:

807.  False or misleading representations  [15 USC 1692e]

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(14) The use of any business, company, or organization name other than the true name of the debt collector's business, company, or organization.

But since only the name "Ken Hughes" was left and not an actual false business name, I'm not sure it applies.  However, if no Ken Huges exists in the entire company, I may have something.  But then again, I know that many collectors use false names in order to protect their individual privacy, and I don't remember ever seeing where that was a violation.

Mischievous Smurfy

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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #17 on: March 24, 2007 01:59:59 AM »
No .. collection agency employees use "registered alias's" all the time ... its perfectly legal ... as long as the agency has the capability of identifying the true name of the employee by the "registered alias".  In other words they must keep track of what names are being used by who.

The true names are discoverable in order name them in a suit ..  plaintiffs usually write it into the pleadings that they do not know the true name of "jon Doe #2" and will "seek leave of the court to amend thier complaint when the true name is discovered" ... couched within the alleged violation of "jon Doe # 2" ...  I have a case where this was done if anyone ever needs it ..

So .. as far as FDCPA and "meaningful" identification ... 1692d (6)

(6) Except as provided in section 1692b of this title, the placement of telephone calls without meaningful disclosure of the caller’s identity.

If I call you and say ... "hey this is "Susie Johnson" and I have an important business matter to discuss with you, please call me at ..."

does the name "Susie Johnson" mean anything to you??
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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #18 on: March 24, 2007 03:51:57 AM »
It's been more than a year now, but I once had my phone ring and was given a number to call back (once) via a recorded message.  Since I don't usually pick up a pencil the instant I receive a call, I didn't get to write the number down.

On a couple of other occasions, the phone rang, I answered and only heard some clicking and dead air.  *69 got me the number and the voice mail of one Ken Hughes.  Twice I called his 800# and left a message for him to call back, but within a short while I decided to go into my "You shouldn't have done that" mode, called the number again and told him that, since he hadn't called back so this matter could be cleared up, and I had his name, he knew what might happen if the calls didn't cease PDQ. >:(

The calls quit :)

Tunnel Light

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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #19 on: March 24, 2007 04:23:36 PM »
I will be transcribing a recording from a long convoluted phone call that I received this morning from my new "friends"...when you see this, you are going to FLIP!  Then I hope you will help me count the ways that I can sue them!
-Tunnel Light

Mischievous Smurfy

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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #20 on: March 24, 2007 10:36:58 PM »
Of course we will ..
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Tunnel Light

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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #21 on: March 25, 2007 02:23:24 AM »
Okay, now remember this isn't a debt collector.  This is a scam of ginormous proportions.  I was gonna go for the TCPA violations for calling after demanding to be put on their do not call list, but this call came in today, and I think it's more serious than originally thought.  For the first 30 seconds or so, it's not recorded, guy gives his name, says something about being called Wa Mu/ Wa Mu.  I'll get to that later, but once I realized it was this same company calling me again, I told him to hang on a second while I turned the t.v. down so I could hear him and flipped the remote recorder...which by the way, beeps softly while it's recording.  Stupid machine.  Okay, here it is, T stands for Tunnel, JA stands for stands for male JackAss.  He speaks at literally a porsche's pace...and you can see why that works for him.  I had to play, replay, slow down, play again to transcribe this, especially the little "advertisement" where he mentions the last four digits of my recently cancelled Visa card; did it a week ago when I got the first call from these clowns.  Someone sold these people my Visa number (well, my old one) and I WANT SOMEONE'S HEAD ON A PLATTER!

T: Hello?

JA: Yes, ma’am.

T: Okay, can you hear me?

JA: (hiccup) Excuse me,  yes ma’am.

T: Okay, I can hear you, go ahead.

JA: (giggle) Okay, now uh, to let you know, Buyer’s Edge it’s about, it’s a program that we do offer, it’s something similar that you’ll find at Sam’s Club, Walgreen’s, and Wal-Mart. You familiar with those clubs?

T: No, well..I’m famil, I’m familiar with Walgreens and Wal-Mart.

JA: I mean at Sam’s Club, BJ’s and Costco?  You familiar with them?

T: Yeah, I’m familiar with those companies.

JA: You know how they have the memberships down there at their stores?

T: Mmm-hmm.

JA: Yes ma’am.   It’s something like, I’m sorry, is that my phone beeping?  Is that your phone beeping?  Your phone’s going dead?

T: Actually, I think it’s starting to lose it’s battery power but it’s all right, it’s got..

JA: I’ll hurry up, I’ll hurry up, I’ll hurry up…

T: No, no, no, don’t speed up, cause then I can’t hear ya…

JA: Oh, okay, okay, well uh, it’s like one of those programs you can use at one of our stores, you can save extra money here and there ma’am on different products, all right?

T: Okay..?

JA:   (Several have been?) implemented into one of our stores, now today we cannot sign you up for anything, you’ll have to go down to one of our stores in person to sign up for it yourself, okay?

T: Okay…

JA: All right, I’m given, what I’m gonna to do to do today is to advertise it to ya and I have to say by Federal law that none of our stores are able to do any type of selling over the phone so if anybody ever calls you from Wal-Mart or Walgreen’s, just simply hang the phone up and all, only thing we can do is advertise to you and get our gift cards in the mail, all right?

T: ( brief silence)

JA: Give me thirty seconds of your time, I’ll be out of your hair okay, ma’am?

T: Okay.

JA: I’ll get to that advertisement in a second, except that what that contains ma’am, I’m gonna ax ya if I can get clear yes or okay that I can continue to give ya your confirmation number or pin number, you’ll hear my phone clicking at that time, it’ll be uh going over to the next page, it’s not static, so do not hang up at that time, all right ma’am?  Uh, you’ll just need my phone clicking a little bit as I go over to my next page at that time I’ll be able to give ya your confirmation number and pin number for your gift card all right?

T: All right.

JA: All right, just bear with me, I’ll go ahead and start the advertisement right now, okay?

T: mmm.

JA: Now this call may be recorded for quality assurance purposes, can I get a clear okay from you ma’am?

T: Sure, you can record it.

JA: Thank you very much ma’am.  Speaking with Mr. Tunnel Light, This is 2-3-5-8 South You Road.  This is Tunnel's hometown, Indiana. This (zip code).  Is that correct ma’am?

T: Sure.

NOW IT GETS REALLY, REALLY, COMICALLY FAST!  If you could only hear this would go, HUH??!!

JA: Thank you very much ma’am.  As a special bonus, we’ve arranged for you to receive up to forty dollars in gas rebate coupons you can start using with your 30-day trial membership to Buyer’s Edge/ My Advisor or this can save you thousands of dollars on name brand items with the guaranteed lowest available prices,  plus get great savings on everyday needs like up to 50% off on travel and over $600 a year in grocery savings, movie tickets, and theme parks too.  And My Advisor gives you unlimited one on one access to financial experts, tax messages, Move a large at no charge, at $175 value, you can use these services as often as you like for your personal or business needs. Members can get professionally-prepared tax returns each year for the most-commonly used tax forms at no charge.  The five days of My Advisor, only one dollar for the first thirty days, billed today to you via V- 25554.  Once it arrives in the mail, take the time to look it over, and see how much you can save.  If you decide to be a member after 30 days, do nothing, and for your convenience, this membership will automatically bill too at the low monthly of fee of just $19.95 a month, to the same card every 30 days thereafter, unless you call 1-888-326-7156 to cancel.  Now each membership includes $20 in courtly gas rebate coupons for a total savings up to $40, and if at any time you feel these programs are not for you, you just have to call Buyer’s Edge and My Advisor to cancel and request a full refund for your current month’s payment membership fee, which approval of any terms I have described. Now Buyer’s Edge/ My Advisor will activate your trial membership, complete your order via secure line website for your security, and send out some membership materials.

(Click, click, click, click…)

JA: Okay ma’am, can I get a clear yes or okay please ma’am?

T: What’s that?

JA: Can I get a clear yes or okay please?

T:  A clear yes or okay for what?

JA: I’m sorry, just so I can give you a confirmation number and pin number for your gift card ma’am.

T: Is that all you’re gonna do?

JA: (short laugh) It’s all I’m gonna do today, only thing we can do is advertising to give out gift cards today ma’am. Now for our advertisements, I wanna give out to you a gift card.  You only have five seconds to click yes or no that you want the gift card.

T: NO.

JA: I’m sorry?

T: NO!

JA: No? Don’t hit yes or no?

T: I’m saying no.

JA: Don’t hit yes or no?  I don’t get it.  No to what?

T:  No to all of it.
JA: I’m sorry, you don’t want your gift card?

JA: I know what it is.

T: You know what what is?

T: You’re the one who’s trying to explain it to me.  I just heard a spiel that went across..across the phone line at about a thousand miles a minute with a lot of disclaimers in it.

JA: Disclaimers?  What do you mean?

T: And I heard something about something being billed to my credit card.

JA: We’re not going to bill anything to your credit card ma’am.

T: How would you not be able to bill anything to my credit card if I agreed to something?

JA: This is not, we’re not doing sales over the phone, just advertising something to you.  I understand you’re not interested in looking through the advertisement, a lot of people aren’t interested, but that doesn’t matter, everybody still gets a gift card in the mail.
You know what I mean?

T: Mmm hmm, well, well, reveal….no, I, I, think I’m signing up for a buyer’s program that if I don’t cancel the, the order within 30 days, you’re going to bill my credit card.

JA:  Well, like I said ma’am, you have to go down to one of our stores in person to sign up for this program.

T: What stores?

JA: The Walgreen’s and Wal-Mart.

T: Walgreen’s and Wal-Mart will allow me to sign up for this program?

JA: Inside of these stores, yes ma’am, yes ma’am.

T: So like I could go to like the service desk and sign up?

JA: You got it.

T: For Buyer’s Edge?

JA: Yes ma’am.  Only thing we’re doing is advertising it today, and just by listening to the advertisement,  you guys get a $50 gift card in the mail.

T: No, I’m gonna go ahead and pass on the $50 gift card.

JA: uh, well, you have a nice day ma’am.

T: You too.

I still honestly have no clue what this guy is really trying to sell me/ scam me.   All I know is that they have my old cancelled card number and someone gave it to them. 

Do you think this story is over?  Oh, of course not.  I got another call an hour later.  Will transcribe that one soon.

-Tunnel Light


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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #22 on: March 25, 2007 03:47:41 AM »
Smurfy, as far as a "registered alias" goes, some state law is different.  Some states don't allow aliases at all.  Some states do, but as in the case of MN, that alias must not only be registered with the company, but also present on the employee's application for their license (all collectors must be licensed in MN).
With all of that being said, a lot of companies I worked for did NOT allow the use of an alias, because they did not trust the collector to be up on all the applicable state laws.  That did not go to say that collectors did not use them...  The company was just not complicit, or aware...   ;)
CA's that have settled:  7
Settlement funds received (FDCPA):  $8500.00  (TCPA):  $9500.00
Negative TL's removed:  4
Amount of money paid on my alleged debts by CA's: $7324.00
Intent to Sue letters currently outstanding: 0
Cleaning my credit at the expense of dirty, violating CA's:  Priceless


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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #23 on: April 05, 2007 09:58:54 PM »
Here is the response I received from HSBC

Dear Mr. proveit:

After researching your inquiry directed to XXXXX executive vice president, I offer you the
following information.

Your daughter's telephone number was listed on a cardmember's account in
error.  The telephone calls that she received were in an attempt to collect
a debt, and were not for telemarketing purposes.

Please note that her telephone number of (xxx) xxx-xxxx was removed from
the account in question on February xx, 2007.  In addition, we are unable
to honor your request for compensation.

I sincerely apologize for the inconvenience this matter has caused you.  If
you have any additional questions or require further assistance, please
feel free to contact me directly at the address or telephone number listed
This is only my opinion/I am not an Atty. nor claim to be

2 wrongs don't make a right. But, 3 lefts do.


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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #24 on: April 05, 2007 11:09:03 PM »
I believe the mother thread on this topic stated that debt collectors are also regulated at this time but are lobbying to change that. So his excuse/explanation does not exempt them.


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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #25 on: April 06, 2007 12:29:32 PM »
  I also believe debt collectors, OC's etc. are covered, but have yet to find hard evidence to the fact that would be convencing other than the plain word of the statute. All provisions of the statute must be considered and each term must be interpreted equally, so as not to deflect from the meaning of the statute. But, will all this convence a Judge?
This is only my opinion/I am not an Atty. nor claim to be

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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #26 on: April 14, 2007 04:34:39 PM »
  Need some help........ I need some hard proof that predictive dialers are considered an automatic dialing telephone system within the definitions of the TCPA. I have used the attached file as proof, but the opposing side thinks this ......

"I do not believe that it substantively changes our discussion.  In spite of that statement, the FCC does not note in its definitions in the rules that are promulgated later, and are found at 47 CFR 64.1200.  This is particularly telling, as the other provisions referenced in the text do.  In addition, the definition conflicts with the express statutory definition.  Finally, I have not been able to find a case, brought by the FCC or otherwise, which has upheld this definition."

I feel the attathed document pretty much spells it out on page 19.

I cannot find a date for 47 CFR 64.1200. Could this have been earlier than the attatched 7/23/03?

I need some feed back, sugestions, anything soon as I am negotiating with them now.
« Last Edit: April 14, 2007 04:41:34 PM by proveit »
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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #27 on: April 15, 2007 11:52:45 PM »
He doesn't think that a predictive dialer is an automatic dialer?
Let him present his arguement to the judge. Then you can site proveit v moron the next time somebody asks for case law.


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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #28 on: April 16, 2007 12:08:50 AM »

Tell em to take this, and sit and spin!

Original Source:

Have an unpaid debt? Hospitals, retail stores and financial institutions want to talk to you about it on your cell phone and are trying to eliminate the legal obstacles that keep them from doing so.

A trade organization made up of credit grantors and debt collectors is asking the feds to agree to allow collectors to reach you on your wireless phone using an automatic telephone dialing system.

Consumer advocates say that this is a violation of the law, as well as an invasion of privacy.

Clarifying the confusion
At issue is the Federal Communication Commission's 2003 interpretation of a rule that appears in the Telephone Consumer Protection Act.

The Telephone Consumer Protection Act was written in the early '90s to restrict telemarketers' use of automated or prerecorded calls. Consumers called for this law after being hounded by telemarketing calls.

In 2003, the FCC adopted a new rule to give consumers several options for avoiding those unwanted solicitations.

The rule says no person can initiate "any telephone call (other than a call made for emergency purposes or made with the prior express consent of the called party) using an automatic telephone dialing system or an artificial or prerecorded voice ... 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."

In updating the rules, commissioners considered the steady rise in telemarketing calls and the growth of a new type of automatic dialer, the predictive dialer.

Predictive dialers automatically dial numbers and then transfer the calls to salespeople or agents if and when someone answers the phone. These are the devices usually responsible when you get a few moments of silence after answering the phone before a person comes on the line.

The FCC commissioners decided predictive dialers could be included in the statutory definition of automatic telephone dialing equipment.

The commission's ruling has members of ACA, the Association of Credit and Collection Professionals International, saying that they are confused and fearful of potential lawsuits.

The collectors and creditors insist that the purpose of their calls is not to advertise or solicit but only to complete a transaction. They say Congress did not mean to prevent creditors from recovering payments with this law, and in both 1992 and 1995 the commission stated that the rule did not apply to calls made on behalf of creditors recovering payments.

More than half of member agencies used predictive dialers last year, according to ACA.

ACA officials complain that the rule has been expanded and the commission's previous statements about calls made by or on behalf of creditors have been discarded.

Here's a link to the FCC and Predict. Dialers  (might find a gem or two in here) sorry I just didn't have time to search through it..

On a side note, if he still fights you ya might want to ask him WHY several ONLINE companies MARKET their automatic dialing systems as predictive dialers.....   

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Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #29 on: April 16, 2007 12:57:19 AM »
The ACA's excuse to oppose the restriction on automatic/predictive dialers is that the collection call is to complete a transaction??  Well, they have a little problem here:  The transaction is nonexistent unless the consumer has agreed to pay the collector already!  The previous transaction has been completed, however unsuccessfully to date....with another party. By the OC's passing it on to a third party to collect, it brings up the question of whether there is a new transaction being initiated with the third-party collector or completing the old one using a hireling. 

A question that may well be worth discussing is whether simply assigning it to collections is a continuation of the old transaction or is an entirely new one.  I would say that a third-party collector is initiating a new transaction based upon an old one that has not successfully completed...this is definetly the case with a JDB, since the OC is no longer legally involved in collection and has passed on title to the debt.  In the case of a contingency collection, one might supppose it's a different story.  Not so, for during the period the debt is assigned to the CA, the OC is normally not allowed to collect on such account.  Hence, the parties to the original transaction are not involved for the period of assignment to the CA, and any collection activity can only lead to a new transaction IF the alleged debtor actually makes it one.

In either case, the call would be unsolicited unless the debtor agrees that they have a business transaction with the CA and so affirms it with the CA themselves.  So, IMHO, the TCPA applies; the call is not allowed until and unless the consumer agrees that they have affirmatively established the business relationship with the CA.  In other words, the consumer, also IMHO, needs to "opt-in" with the CA in some fashio--usually by agreeing to pay them--before the CA is off the hook for any potential of violating the law on this point.
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