Author Topic: Using the Telephone Consumer Protection Act to your advantage  (Read 66089 times)

0 Members and 1 Guest are viewing this topic.

Mischievous Smurfy

  • Valued Member
  • Posts: 5595
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #30 on: April 26, 2007 07:33:42 AM »
Part II: The Land Line


Now in its Second Order on Reconsideration published February 18, 2005, the FCC clarified that “calls made for the purpose of debt collection are not required to identify the caller’s state-registered name in prerecorded messages if doing so would conflict with Federal or state laws.”

This means that if a call is subject to the FDCPA, the caller need not identify the state registered legal name. However the caller must “identify themselves by individual name and state clearly the telephone number (other than that of the autodialer or prerecorded message player that placed the call) of such business, other entity or individual.”


I'm re reading this looking for ammo ...  CA calls and does not ID the company only the first name of the individual caller...

I  think there is a slight mistep in your post ...  this does not mean that if the entity is subject to FDCPA (or any other laws) they don't have to identify themselves ... it means that if identifying themselves conflicts with FDCPA (or any other laws) they do not have to identify themselves ... There is a HUGE difference between the two ... the former gives all CAs blanket exemption from the requirement to identify themselves.

for example ... msot CAs arent bold enough to put known 3rd parties in the autodialer ... skip tracing is done dialing the old fasioned way ...

but lets forget for a moment all the ways adding a 3rd party to an auto/predictive dialer would violate the act for this example ... the CA knowingly puts a 3rd parties number in the autodialer and predictive dialer and serves up a pre recorded message.   In this case the requirement to identify themselves on the message does confict with the FDCPA because they cannot identify thier registered legal name unless specifically asked by the 3rd. party.   In this case they would not be required to make such identification.

But ... if they know that they are calling the phone number of the debtor/consumer in question ... both the FDCPA and the TCPA would require them to identify thier registered legal name.


In my case ...  I spoke to the creditor from this number not to long ago ... they have no excuse under either act to not identify themselves.

I have not one but two messages from them niether identifies the legal registered name.
« Last Edit: April 26, 2007 07:40:05 AM by smurfy »
Ease of Use - Smurfy's Quick Reference


why are we requesting validation instead of disputing???  Why Why Why

proveit

  • Valued Member
  • Posts: 274
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #31 on: April 26, 2007 12:37:49 PM »
  Smurfy....Makes sense. Now add this situation. CA calls leaving pre-recorded message knowing who they are calling. Their message does not reveal the business name nor the individuals name. Then after telling you the number to call back states "this communication will be with a debt collector and any information obtained will be used for that purpose".

  TCPA seem easy here. But now don't you also have FDCPA violations for possible third party disclosure? Maybe I was eating dinner with the Pope when the call came in and did not answer it.
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.

Mischievous Smurfy

  • Valued Member
  • Posts: 5595
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #32 on: April 26, 2007 01:08:15 PM »
No that is just the excuse they use ... and will not go over well in court.

lets play devils advocate all the way around ...

CA calls while I'm having dinner with the Pope and I don't answer.  Calls goes to an actuall still in existance answering machine. 

Let's face it ... what percentage of the population still uses those and doesn't have voice mail?  Most basic phone service packages these days have voice mail for free.

So anyway ...  the Pope get to overhear the following message "Hello proveit, this is Sally Smith and I have an important business matter to discuss with you.  Please call at 1-800-###-####"

Everyone on the planet knows that is the standard collection industry message used.   Pope still knows it is a collection agent calling, he just doesn't know who .... and so do you.

The only real thing they have accomplished is to attempt to "force" you to call back ... because you must do so to find out who it is and they think once they have you on the phone they own you.

***********************************

Lets push this to the extreme ...  you answer the phone ... Pope get to sit an listen to your end of the conversation ... I think you will agree that no matter what the collection agency says ... it is highly likely that Pope will know it is a collection call ...

why?  because you will have to say over and over about 15 times "this isn't a good time I will call you in the morning"

who, other than a collection agency, is going to make you repeat that 15 times?

**********************************

or even better ... you children are not consumers for any purpose including communication ... unlike your spouse...

You think any kid older than 12 doesn't know what your end of a collection call sounds like?  Opps... third party disclosure ... tsk tsk tsk

**********************************

or the collection letter they are mailing to you might get put into the wrong mailbox .... opps third party disclosure ... maybe we shouldn't say who we are on those either ... just "please send $0000.00 to this address"  ... anything else would alert the finder that you owe a debt  ... right?
Ease of Use - Smurfy's Quick Reference


why are we requesting validation instead of disputing???  Why Why Why

Dolemite73

  • Valued Member
  • Posts: 159
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #33 on: April 26, 2007 04:04:33 PM »
Ok gang, I am going to give this a whirl.  I got an OC that has called my cellphone 32 times in the past 6 monthswith a prerecorded message.  I am pretty sure it is an autodialer or a predictive dialer.  Cut and dried violation, right?  Especially since the same OC has called me at my work number in the past and has this number on file.  Thanks in advanced.

proveit

  • Valued Member
  • Posts: 274
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #34 on: April 26, 2007 04:45:39 PM »
  Did you inform them they were calling a cell number? Did you ask them not to continue to call that cell number?
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.

Dolemite73

  • Valued Member
  • Posts: 159
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #35 on: April 26, 2007 04:48:23 PM »
  Did you inform them they were calling a cell number? Did you ask them not to continue to call that cell number?
Not until yesterday.  The law states that they must have my expressed consent to call my cell in such a way.  Expressed consent has never been given.

Doctor Evil

  • BANNED
  • Posts: 1438
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #36 on: April 26, 2007 08:02:31 PM »
Not until yesterday.  The law states that they must have my expressed consent to call my cell in such a way.  Expressed consent has never been given.

Well I guess you answered your own question.

Dolemite73

  • Valued Member
  • Posts: 159
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #37 on: April 27, 2007 01:18:13 AM »
Well I guess you answered your own question.
Au contraie mon frere.....there are databases out there specifically for companies to check this sort of thing.....this law seems cut and dried.....it is illegal for any person to call a cell phone using automatic dialers.......I am going to engage the OC and see what happens.....

usofa

  • Valued Member
  • Posts: 466
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #38 on: April 27, 2007 01:27:58 AM »
Ok, back to dinner with the Pope. If they call and leave the prerecorded message that does not identify the calling party at all...

"Hi this is an important message for Billy Bob. This is not a sales call. Please call 800-xxx-xxxx."
This violates the TCPA because it does not identify the calling party.  Also violates the FDCPA because it is communications from a debt collector and did not include the "mini miranda" warning.(Foti v. NCO)

"Hi this is Sally with an important message for Billy Bob, Please call 800-xxx-xxxx"
this violates the FDCPA becasue it does not include the "mini miranda". Would not violate the TCPA because the calling party is a debt collector and so they are only required to identify by name.

"Hi this is an important message for Billy Bob. This is not a sales call. Please call 800-xxx-xxxx." (live operator)
this violates the FDCPA becasue it does not include the "mini miranda". Would not violate the TCPA because live calls, even from an autodialer are permitted.

In the second example FCC has exempted calls from debt collectors from identifying the state registered name if revealing the name would violate state or federal law. I have not found any case law that says that revealing the state registered name would not violate FDCPA so they must reveal state registered name. Theoretically you could argue that under Foti and its requirement that you disclose that you are a debt collector, the exemption from FCC regulations does not exist for debt collector. But, big BUT, you would be walking on untested waters. I am not prepared for that fight.

As for cellphone calls to dolemite.  Doesn't matter if it is autodialed, it is a prerecorded message so it would be a violation of TCPA unless they had your express consent. Typically express consent must be in writing. Under the FCC's First Rule and Order, providing them with the number is consent. However, in the Second Order, they clarified for telemarketing rules and fax rules Express Consent must be a signed statement providing consent to call a specified number. (they did not address the issue for cell phones at all in the order) I have had success arguing that providing a number does not provide express consent under the new definitions in other sections of the rules.

Be that as it may, once you tell them that they do not have consent, then they do not have consent! Also, if you tell them it is a cell phone and that they do not have consent, then it is knowingly and they set themselves up for triple damages. Also, beware Chase and WaMu have recently added to their T & C new consent clauses.  Chase T & C now states that they have consent to call you at any number even cellular telephones. I am preparing to fight that one in court. Also WaMu says that you have provided consent to be callled at any number from which you have called them. I don't think that one will hold up in court at all. I will now shortly!

Dolemite73

  • Valued Member
  • Posts: 159
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #39 on: April 27, 2007 02:16:46 AM »

As for cellphone calls to dolemite.  Doesn't matter if it is autodialed, it is a prerecorded message so it would be a violation of TCPA unless they had your express consent. Typically express consent must be in writing. Under the FCC's First Rule and Order, providing them with the number is consent. However, in the Second Order, they clarified for telemarketing rules and fax rules Express Consent must be a signed statement providing consent to call a specified number. (they did not address the issue for cell phones at all in the order) I have had success arguing that providing a number does not provide express consent under the new definitions in other sections of the rules.


Well, I need to get the first and second rule of order.  They owe me $16,000.....

proveit

  • Valued Member
  • Posts: 274
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #40 on: April 27, 2007 01:53:32 PM »
I found this also...thought it may help.

Watson v. NCO Group, Inc.

The United States District Court for the Eastern District of Pennsylvania has held that a caller could be held liable under the federal TCPA for erroneously making prerecorded or mechanical collection calls to a person who owed no debt. Watson v. NCO Group, Inc. , No. CIVA 2:06CV1502, 2006 WL 3059933 (E.D. Pa. Nov. 28, 2006).

In Watson, the plaintiff alleged that he received more than 200 prerecorded or mechanical telephone calls in a five month period from a debt service to which he owed no debt. According to the plaintiff, he spent more than 53 hours speaking with approximately 29 agents in an attempt to correct the problem. When his attempts failed, the plaintiff sued the caller and others on the theory that they violated, among other things, the TCPA’s prohibition against initiating telephone calls to residential telephone lines using an artificial or prerecorded voice to deliver a message without the prior consent of the called party. See 47 U.S.C. § 27(b)(1)(B).

The defendants filed a motion to dismiss, arguing that the debt collection calls under consideration were exempt from the TCPA. The district court, however, disagreed. According to the district court, the calls did not fall under the TCPA’s established business relationship exemption because an erroneously called non-debtor does not have such an established business relationship with a caller. The court also found that the calls did not fall under the TCPA’s exemption for commercial calls that do not adversely affect privacy rights and do not transmit an unsolicited advertisement because, according to the court, a non-debtor’s rights are in fact violated when the person is subject to repeated annoying and abusive debt collection calls that the person is powerless to stop.For these reasons, the district court denied the defendants’ motion to dismiss the plaintiff’s TCPA claim.

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.

Kitten

  • Valued Member
  • Posts: 2017
    • MCSD
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #41 on: April 27, 2007 05:14:56 PM »

According to the district court, the calls did not fall under the TCPA’s established business relationship exemption because an erroneously called non-debtor does not have such an established business relationship with a caller.

Yikes. Does this imply that the debtor and the CA do have a business relationship?

Rottweiler

  • "SIT!" "Stay!" "Watch OUT!"
  • Valued Member
  • Posts: 6022
  • Talent does what it can; genius does what it must
    • Debtor Talk:  "Tough Love" for the Collection Industry.
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #42 on: April 27, 2007 05:22:07 PM »
Yikes. Does this imply that the debtor and the CA do have a business relationship?

It certainly does.  And, they do:  The contracts for credit as far as I have seen always allow for a hireling as an assignee--the CA--to exercise any and all rights assigned by the creditor to them. In the case of the CA, this is the right to collect the debt.

Therefore, by contract, the debtor has that business relationship with the CA that is needed to trigger the exception under the TCPA.
“This is a court of law, young man, not a court of justice."
~ Olver Wendell Holmes

proveit

  • Valued Member
  • Posts: 274
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #43 on: April 27, 2007 05:41:05 PM »
  But.....you also need to look at what, and the time frame a business relationship is considered non-existant.
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.

Kitten

  • Valued Member
  • Posts: 2017
    • MCSD
Re: Using the Telephone Consumer Protection Act to your advantage
« Reply #44 on: May 11, 2007 10:44:11 PM »
Got a lot of marketing calls supposedly from BoA early last month. After several calls, they were told not to call again. Have a BoA account, phone is on Do Not Call list.

All was quiet until today, got a call from 614-652-2636, which seems to belong to Influent, a call center used by lots of companies, one of them may be Bank of America. Assuming that the call was made by Influent for BoA or some other company I do business with, how far would I get telling a court I have no business relationship with Influent, and therefore calls from Influent violate TCPA?

 

credit