The Telephone Consumer
Protection Act
Presented by:
Raymond F. Moats, Esq.
February 27, 2014
Overview
• Telephone Consumer Protection Act of 1991
• Fair Debt Collection Practices Act
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
TPCA
• 47 U.S.C. §227
– Do Not Call Implementation Act
• Regulations: 47 C.F.R. §64.1200
• Federal Communications Commission Rules and
Orders
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Debt Collection
Prior express consent & prior express written consent
Automated telephone dialing equipment (ATDS)
Applies to telephone calls and text messages
The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
47 U.S.C. § 227
• Limits the use of certain technologies to contact
consumers
• Establishes a do-not- call registry
• Proscribes caller identification requirements
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Definitions
• “Automatic Telephone Dialing System” (ATDS)
– Equipment which has the capacity –
• To store or produce telephone numbers to be called,
using a random or sequential number generator; and
• To dial such numbers.
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Restrictions
• §227(b) Restrictions on the use of ATDS
• (1) 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 –
– (A) to make any call (other than a call made for emergency
purposes or made with the prior express consent of the called
party) using any automatic telephone 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 this call
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Restrictions
• §227(b)(1)(B)
– To initiate any telephone call to any residential
telephone line using an artificial or
prerecorded voice to deliver a message
without 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)
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Regulatory Authority
• §227(b)(2)
– Provides for the FCC to issue regulations
• Shall consider prescribing regulations to allow businesses
to avoid receiving calls made by autodialer or prerecorded
voice if the business has not given prior express
consent
• May create rules that exempt from the requirements of
paragraph (1)(B)
– Call is not made for commercial purpose; and
– The call will not adversely affect the privacy rights
– The does not transmit an unsolicited advertisement
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
47 C.F.R. §64.1200(a)(2)
• No person or entity may:
– (a)(2) call any residential line using an autodial or prerecorded
voice to deliver a message without prior express consent
unless:
• Made for emergency purposes
• Not made for commercial purpose
• Made for commercial purpose but does not include an
unsolicited advertisement or constitute a telephone
solicitation
• Made by or on behalf of tax-exempt nonprofit entity
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Exemptions
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Commercial calls for non-marketing purposes
Calls from tax exempt, nonprofit entity
Political calls
Loan Servicing Calls
Notices and alerts from:
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Airlines
Banks and credit card companies
Schools and universities
Package delivery services
Wireless Carriers (plan usage)
Research calls or surveys
The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Identification standard
• Artificial or prerecorded message shall:
– Begin with a clear statement of the identity of the caller;
and
– During the message, the telephone number of the
caller other than the autodialer number
• The telephone number provided must be a toll free
or local number
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Telephone solicitation
• FCC defines “telephone solicitation” as:
– The initiation of a telephone call or message
for the purpose of encouraging the purchase
or rental of, or investment in, property, goods,
or services, which is transmitted to any
person.”
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Amended TCPA Rules
• Opt-out mechanism
– Option announced at beginning of call
– If invoked, consumer must be automatically added to caller’s
do-not-call list
– Call must end.
• Prior express written consent
– Unambiguous written consent
• Exception – calls that are manually dialed and do not
contain a pre-recorded message
• No “established business relationship”
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Amended rules
• Statutory damages
– $500.00 for each non-complying robocall or text
message, with no cap on total damages
– Can be tripled if offender is a repeat offender
• Seller can be vicariously liable under the TCPA
for calls made by third-party telemarketers
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Debt Collection
• 47 C.F.R. §64.1200(a)(2)(iii) and (iv)
• These regulations apply where a third party
places a debt collection call on behalf of the
company holding the debt
• 1995 Reconsideration Order
• Debt collection calls not directed to randomly or
sequentially generated telephone numbers do
not require an identification message
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Debt Collection
• “Calls made for the purpose of debt collection are
not required to identify the caller’s stateregistered name in prerecorded messages if
doing so would conflict with federal or state laws”
In the Matter of Rules and Regulations
Implementing the Telephone Consumer
Protection Act of 1991, 20 F.C.C.R. 3788, 20
FCC Rcd. 3788 (Feb. 18, 2005).
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Debt Collection
• Debt collection calls to cell phones
– Prior Express Consent
• “Persons who knowingly release their phone numbers have in
effect given their invitation or permission to be called at the
number which they have given, absent instructions to the
contrary.” Rules and Regulations Implementing the Telephone
Consumer Protection Act, CC Docket No. 92-90, Report and
Order, 7 FCC Rcd 8752,8769, para. 31 (1992).
• If the consumer provides a cell phone number to a creditor as
part of the credit application, this is reasonable evidence of prior
consent by the consumer to be contacted at the number
regarding the debt. Rules and Regulations Implementing the
Telephone Consumer Protection Act of 1991, 23 FCC Rcd 559,
564, para. 9 (2007)
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Prior Express Consent
• On October 16, 2103, FCC revised its rules to require
prior written consent for autodialed and prerecorded
telemarketing calls. It did not change the rules for
non-marketing, informational calls made on behalf
of tax-exempt non-profit organizations
• Calls without telemarketing do not require consent to
residential landlines
• Calls to wireless consumers require oral or written
consent
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Prior Express Consent
• In the revised rules, prior express consent means:
– An agreement in writing, bearing the signature of the person
called that clearly authorizes the seller to deliver or cause to
be delivered to the person called advertising or telemarketing
messages using ATDS or prerecorded voice and the
telephone number to which the consumer agrees to receive
such advertisements.
– Consumer is not required to sign the agreement as a condition
to purchase any property, goods or services.
– “Signature” includes electronic or digital form of signature
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Prior Express Consent
• Meadows v. Franklin Collection Serv., Inc., 414 Fed
App x 230 (11th Cir. 2011)
– Collection calls to debtor’s mother’s landline were not
violations of TCPA
• Franklin had established business relationship with debtor
and the call were made for a commercial, non-solicitation
purpose, the calls are exempt from TCPA’s prohibitions of
prerecorded calls to residence.
• FCC has determined that all debt collection calls are
excluded from TCPA coverage.
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Express Prior Consent
• Soppet v. Enhanced Recovery Co., LLC, 679 F.3d
637 (7th Cir. 2012)
– Debt collector used an ATDS to call telephones number
provided by debtor to creditor. However, the telephone
number had been reassigned to a new user. New owner sues
debt collector for TCPA violations.
– Debt collector argues the “called party” is the debtor / prior
user of the telephone number
– Court ruled that the current user/subscriber of the telephone
number is the “called party”
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Prior Express Consent
• Consent must be clear and specific
– Satterfield v. Simon & Schuster, 569 F.3d 946 (9th Cir. 2009)
• Simon & Schuster purchased an opt-in list from a ringtone
company. Simon & Schuster used the list to send text
messages to advertise a Steven King book.
• Plaintiff has opt in to receive promotional offers from the
ringtone company.
• Court determined it was reasonable under the TCPA that
“call” includes both voice calls and text messages.
• Court held that plaintiff could not have given prior express
consent to receive promotional materials from Simon &
Schuster because it is not affiliated with the ringtone
company.
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Prior Express Consent
• Pinkard v. Wal-Mart Stores, Inc., 2012 U.S. Dist.
Lexis 160938 (N.D. Ala. Nov. 9 2012)
– Pinkard provided her cell phone number when she dropped off
her prescription. She received unsolicited text messages from
Wal-Mart.
– Plaintiff claimed that she didn’t give her written consent,
however, the court determined that written consent rule
wouldn’t go into effect until October 2013.
– Therefore, by providing her cell number to Wal-Mart, Pinkard
had consented to receive messages from Wal-Mart.
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Prior Express Consent
• Mais v. Gulf Coast Collection Bureau, Inc., 2013
U.S. Dist. LEXIS 65603 (S.D. Fla. May 8, 2013)
– Wife provided plaintiff’s cell number to hospital during trip
to the ER. Plaintiff was contacted by debt collector for
failure to pay a bill.
• Court held that wife didn’t give “prior express consent”
because it was not reasonable that plaintiff or wife
would expect to receive collection calls.
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Revocation of Consent
• Gager c. Dell Financial Services, LLC, 2013 U.S. App. LEXIS
17579 (3rd Cir. Aug. 22, 2013
• Plaintiff purchased a computer from Dell. She provided
her cell telephone number on the application. She
defaulted on the loan. Dell attempted to contact her with
prerecorded messages on her cell phone. Gager sent a
letter to Dell requesting Dell to stop calling her. Dell
continued calling.
• The court held that an individual should be allowed to
withdraw consent at any time
• Dell can contact Gager about the delinquent account but
use manual dialing.
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Text Messages
• Emanuel v. L.A. Lakers, Inc., 2013 U.S. Dist. LEXIS
58842 (C.D. Cal. April 18, 2013)
– Mr. Emanuel was attending a Lakers game. A message was
posted on the score requesting patrons to text messages to
the Lakers to be displayed on the score board. Mr. Emanuel
sent a text of “I love you Facey. Happy Date Night.” He
received a confirmatory text from the Lakers which said that
not all texts will be displayed and if he wants to be removed
from the text system to text “stop.”
– The court held that since plaintiff voluntarily texted the Lakers
for the purpose of displaying a personal message, he
consented to receive a confirmatory text.
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Fair Debt Collection Practices Act
• FDCPA
– It is the purpose of this title to eliminate abusive debt
collection practices by debt collectors, to insure that those
debt collectors who refrain from using abusive debt collection
practices are not competitively disadvantaged, and to promote
consistent State action to protect consumers against debt
collection abuses.
– The FDCPA provides rules for debtor collectors in the areas
of: acquisition of location information, communication in
connection with debt collection, unfair practices, misleading or
false representations, harassment and validation of debt.
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
FDCPA
• Recent amendments
– §1692g(b) - Collection activities and communications can
continue during the 30 day period unless the consumer
notifies the debt collector in writing that the debt or any portion
of the debt is deputed or the consumer requests the name and
address of the original creditor. The activities may not
overshadow or be inconsistent with the consumer’s right to
dispute the debt.
– §1692g(d) – Legal pleadings shall not be treated as an intitial
communication.
– §1692g(e) – The sending of a notice which does not relate to
the collection of debt and is expressly required the IRS code,
Gramm-Leach-Bliley Act are not initial communications.
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Questions & Answers
• Any questions?
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA
Questions & Answers
Thank you for your time.
Raymond Moats, Esq.
rmoats@weltman.com | 614-801-2767
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The Telephone Consumer Protect Act
WELTMAN, WEINBERG & REIS CO., LPA