Topic: Using the Telephone Consumer Protection Act to your advantage

[jenean1215]

Are you able to use this of they are trying to reach someone else instead o you?

[vballchick]

You'll want to read the TCPA posts and search the topic.  It will help you a lot. And yes, I think it applies...  VBC 

[KFMAN]

I don't know if the link below is posted on this website or not, but after reading it, I believe TCPA covers land line calls just as much as cell phones.  I know some on this thread had stated it but seems to me most of the TCPA talk is about calls to Cell phones.

http://www.fcc.gov/cgb/consumerfacts/tcpa.html

[KFMAN]

The above link says "willfully and knowingly" but I think the law states OR.  OR might be easier to prove to a judge.

[Mischievous Smurfy]

I don't know if the link below is posted on this website or not, but after reading it, I believe TCPA covers land line calls just as much as cell phones.  I know some on this thread had stated it but seems to me most of the TCPA talk is about calls to Cell phones.

http://www.fcc.gov/cgb/consumerfacts/tcpa.html

I've been saying that for a long time....

(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States—

(B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B)


And your right ... the statute actually says OR not AND

[NotBonJovi]

As I said in the other thread:

How can something be done willfully yet NOT knowingly, or vice versa? I'm trying to catch on to why the "OR" is so earth-shatteringly different than "AND," at least in this particular context.

Seriously, anyone?

[KFMAN]

I guess maybe there isn't.  I just figured you might have to prove they did both, but your probably right it doesn't matter.

[loveanurse]

I really wish i would have known about this sooner! I went through 4 months of and could have gotten 3 different companies on these violations if I understand what I am reading. I used to get those calls all the time!

Anyway, my question is regarding the cell phone. I do not have a home phone. My boyfriend and I use only our cell phones as our primary phone numbers. Does this still apply since there is no landline?

[vballchick]

It does, especially if they don't have your express consent. 

[loveanurse]

Well, I didn't come out and say "yeah, call me 8,000 times a day on my cell phone and make me miserable so i can't even turn my ringer on" so I didn't really give them consent per se.... basically it comes down to it's the only phone I have, so if I have to give a phone number, I'm going to have to give my cell phone number.

I didn't know if since that is my only phone number if it would apply to me. But I certainly didn't give them permission to harass me like that

[makempay]

I am about to draft an ITS for TCPA violations toward a CA/OC. If it ends up going to court would I file in the state court that I live in(CT) or the state of the CA.
 

[foolsmission]

Before the you ITS,
first master how jurisdiction and venue apply and then touch on that in your ITS.

[TomTomTCPA]

Thanks for calling me the Guru. I have boned up on the TCPA and it has really helped financially.  There was an article on MSNBC.com about two weeks ago about a guy that has made a living off of enforcing the TCPA. He made $27,000 last year.  He is my idol LOL.

As for your questions,

There is no permit required by the FCC to use a predictive dialer, automatic dialer or prerecorded voice messages.

As for the spoofed caller ID's.  That is prohibited by the rules, however they fall under a part of the TCPA that does not provide a private right of action. Only a state's Attorney General or the Commission can enforce that part, under my understanding.

As to the identifying the collection agency in a message, the American Collection Association argued for the exception and the Commission gave it to them. From current court ineterpretations of the FDCPA I don't think it would be a violation of the FDCPA to identiry themselves, since they are required by Foti v NCO to include the mini-miranda. But until the FCC revisits the issue, it is not a violation of the TCPA.

The bad skip calls may be a violation of the TCPA. Under the Act, they can not call a residential number with an automated or prerecorded voice. They are calling with a predictive dialer which is legal, however, if they do not connect to a live operator within 2 secs of your completed greeting, they are required to play a recording that identifies the caller. As a debt collector, they do not have to identify the legal state registered name, but they must identify by name the caller. They must also provide a phone number answered by a live person in this recording.

The Act does not provide a specific Bona Fide error defense, but I am sure they would try it.

usofa, where is the regulation that requires them to play the recording if they can't connect to a live operator within 2 seconds?  I have searched; the only reg I found is 64.1200(a)(6) -- but that only applies to "telemarketing calls" which definition does not include debt collectors.

[stizzlerizzle]

Questions on the "wilfully or knowingly" part of the TCPA.
If a debt collector skip traces and comes up with a phone number that was not given to the original creditor, they call  with pre-recorded messages, is that not a wilful or knowing violation?  They knew they were not given permission to use the pre-recorded messages on that number, and they cannot claim ignorance of the law.

Another scenario.
A debt collector calls a cell phone with an autodialler/pre-recorded message.  There are ways to determine whether a number is a cell or land line.  Does the burden not fall on them to determine the type of phone they are calling?  Can they claim ignorance on that fact?

[KFMAN]

Questions on the "wilfully or knowingly" part of the TCPA.
If a debt collector skip traces and comes up with a phone number that was not given to the original creditor, they call  with pre-recorded messages, is that not a wilful or knowing violation?  They knew they were not given permission to use the pre-recorded messages on that number, and they cannot claim ignorance of the law.

Another scenario.
A debt collector calls a cell phone with an autodialler/pre-recorded message.  There are ways to determine whether a number is a cell or land line.  Does the burden not fall on them to determine the type of phone they are calling?  Can they claim ignorance on that fact?

The key is do they have your consent to call your cell phone and they must prove that.