AMERICAN ASSOCIATION OF
HEALTHCARE ADMINISTRATIVE
MANAGEMENT
RISING TCPA COMPLAINTS-LOWER
RISK
AAHAM GREATER FLORIDA BUCCANEER CHAPTER
June 3, 2011
Ernest H. (Skip) Kohlmyer, III, Esquire, Partner
South Milhausen, P.A.
Gateway Center
1000 Legion Place, Suite 1200
Orlando, Florida 32801
407-539-1638 (office)
407-539-2679 (fax)
407-230-6408 (cell)
(c) Ernest H. Kohlmyer, III
TELEPHONE CONSUMER PROTECTION
ACT (“TCPA”)
• The Telephone Consumer Protection Act of 1991
(TCPA) prohibits the use of any auto-dialers and
predictive dialers or an artificial or prerecorded
voice to place calls to any wireless number
except for emergency purposes or with the called
party’s express consent.
What is the TCPA?
• The TCPA, specifically 47 U.S.C. §
227(b)(1)(A)(iii), prohibits a person from
making “any call using any automatic telephone
dialing system or an artificial or prerecorded
voice” to any wireless telephone number.
47 U.S.C.A. § 227
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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-(i) to any emergency telephone line (including any “911” line and any emergency line of a hospital,
medical physician or service office, health care facility, poison control center, or fire protection or law
enforcement agency);
(ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly
home, or similar establishment; or
(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;
(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);
EXCEPTIONS
• However, the statute explicitly permits making
autodialed or prerecorded message calls to a
wireless number under two circumstances:
• (1) if the call is made for an emergency purpose;
or
• (2) if the call is made with the prior express
consent of the called party.
PRIOR EXPRESS CONSENT EXCEPTION
• Thus, the prior express consent exception to
making autodialed and prerecorded message
calls to a wireless number has always been an
exception to the TCPA prohibition on making
autodialed or prerecorded message calls to a
consumer’s wireless number.
The FCC issued a declaratory ruling in
response to ACA’s request on January 4,
2008.
• In an effort to clarify how the TCPA applies to the credit
and collection industry, ACA International submitted a
petition to the FCC in 2005 requesting the FCC publish
an order explaining the TCPA prohibition against
autodialed or prerecorded message calls to wireless
numbers does not apply to creditors and debt collectors
when initiating such calls to wireless numbers for debt
collection purposes.
• Since the TCPA’s inception, the Federal
Communications Commission (FCC), charged
with rulemaking authority over the TCPA,
implemented regulations and provided guidance
over the application of the TCPA.
FCC RULING IMPACTS DEBT
COLLECTION INDUSTRY
• In particular, the FCC ruled that autodialed and
prerecorded message calls to wireless numbers provided
by the called party in connection with an existing debt
are permissible because such calls are made with the
prior express consent of the called party.
• It should be noted at the outset that the FCC’s ruling is
by no means an absolute clarification on the TCPA and
the application of the prior express consent provision
toward creditors, debt collectors, and asset buyers, as
courts could still weigh in on this issue in the future.
The ruling does, however, provide significant
clarity on a number of issues. As an overview,
the FCC’s ruling clarifies the following:
• 1. A creditor, debt collector, or asset buyer is not prohibited by the TCPA
from manually placing a call to a consumer’s wireless number in connection
with a debt.
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• 2. A creditor, debt collector, or asset buyer is permitted to make autodialed
and prerecorded message calls to a consumer’s wireless number in
connection with an existing debt so long as the consumer provides prior
express consent to that calling party.
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• 3. A consumer provides prior express consent to be called at her wireless
number via auto-dialer or prerecorded message if she knowingly releases
her wireless telephone number to the calling party. Such consent does not
have to be in writing.
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• 4. A consumer who gives prior express consent to the creditor similarly
gives such consent to the debt collector calling on behalf of the creditor.
What constitutes “prior express
consent”?
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• A consumer gives prior express consent for a debt
collector or creditor to contact the wireless number
via auto-dialer or prerecorded message if:
• (1) the consumer knowingly releases his/her
wireless number; and
• (2) the wireless number is provided during the
transaction that resulted in the debt owed.
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The first element requires the consumer
to knowingly release his/her wireless
number.
• In its ruling, the FCC references its 1992 TCPA Order in which
it defined prior express consent, stating, “[P]ersons 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.”
• As a result, the release of a wireless number, for purposes of
prior express consent, does not require the consumer have
knowledge that she will receive autodialed or prerecorded
message calls to her wireless telephone, but simply that she
will be contacted by the calling party if she releases her
wireless number.
The second element requires the wireless
number be “provided during the
transaction that resulted in the debt
owed.”
• The consumer must have knowingly released her
wireless number to a creditor or debt collector
between the time the transaction is initiated and the
time the transaction is paid off.
• In other words, if a wireless number is
obtained from another source, such as
through skip-tracing efforts or consumer
reports, then the consumer has not provided
prior express consent.
CONSENT AT THE COLLECTION PHASE
• The same applies to debt collectors. If a consumer
provides her wireless number to a debt collector as a way
to be contacted in regards to one debt, the debt collector
can make autodialed and prerecorded message calls to
the consumer in regards to that particular debt.
• The debt collector cannot utilize that wireless number to
contact the consumer in regards to another debt without
obtaining the consumer’s prior express consent to do so.
• Again, note the debt collector could place manual calls
to the consumer’s wireless number in regards to any
debt.
Preserving the “Prior Express
Consent” Exception
• Adding language in forms, applications and contracts
substantially similar to the following:
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• You agree, in order for us to service our account or
to collect any amounts you may owe, we may
contact you by telephone at any telephone number
associated with your account, including wireless
telephone numbers, which could result in charges to
you. We may also contact you by sending text
messages or e-mails, using any e-mail address you
provide to use. Methods of contact may include
using pre-recorded/artificial voice messages and/or
use of an automatic dialing device, as applicable.
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Hospital Consent or Intake Form
Saves the Day
• Pollock v. Bay Area Credit, United States District
Court, Southern District of Florida, August 2009
• Plaintiff sought TCPA damages for 187 calls to her
cell phone arising out of medical transportation
services debt.
• Jury to Consider (1) Did Plaintiff provide “prior
express consent?”, if not, (2) Did Defendant willfully
and knowingly violate the TCPA?
Possible Outcomes
• Defendant wins and pays $0.00
• Defendant loses and pays $93,500.00
• Defendant loses and pays $280,500.00
Jury Finding
• Despite Plaintiff’s denial that she did not consent to calls to her cell
number, jury held that since she provide the cell number on
ambulance intake report prior to transportation and there was no
evidence of revocation, Defendant is entitled to defense of prior
express consent and received a defense verdict.
• Burden of proof is on the Defendant to prove prior express consent
and was not entitled to argue a “mitigation” of damages issue.
• Plaintiff filed two other TCPA claims against other businesses for
the same delinquent charge and never called the agency to request
that they cease communication.
• Agency had no knowledge that the telephone number was a cellular
number and did not use “scrubbing” software to find out this
information.
Revocation of Prior Express Consent
• Because a consumer may provide prior express consent to the creditor or
debt collector for either party to make autodialed and prerecorded message
calls to her wireless number in connection with the collection of a debt, it
appears a consumer has the ability to provide prior express consent at any
time during which a debt is created and is ultimately paid off.
• As a result, a consumer that has provided prior express consent may
similarly revoke such consent at any time.
• Further, revocation prohibits both the creditor and debt collector from
making autodialed and prerecorded calls to the consumer’s wireless
number.
• For example, if a consumer revokes consent when communicating with a
debt collector, the debt collector must inform the creditor of such
revocation as both parties are prohibited from placing autodialed and
prerecorded message calls to the consumer.
Liability under the TCPA
• The creditor is responsible for proving the consumer provided
prior express consent.
• Nevertheless, the ruling states in a footnote that a third-party
debt collector may also face liability for violating the FCC’s
rules.
• The ruling’s suggestion to include a written disclosure
informing the consumer that she provides prior express
consent to be contacted on her wireless number by autodialed
or prerecorded message underscores the significance for
creditors and debt collectors to develop and implement
policies and procedures that identify whether a consumer has
knowingly offered her wireless number and also identify if,
and when, a consumer has revoked such consent.
Liability under the TCPA
• A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring
in an appropriate court of that State-•
• (A) an action based on a violation of this subsection or the regulations prescribed under
this subsection to enjoin such violation,
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• (B) an action to recover for actual monetary loss from such a violation, or to receive $500
in damages for each such violation, whichever is greater, or
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• (C) both such actions.
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• If the court finds that the defendant willfully or knowingly violated this subsection or the
regulations prescribed under this subsection, the court may, in its discretion, increase the
amount of the award to an amount equal to not more than 3 times the amount available
under subparagraph (B) of this paragraph.
• GOOD NEWS: TCPA does not provide for entitlement to attorney’s fees
Suggested Strategies to Reduce
Exposure to TCPA Liability
• Amend hospital admissions or intake forms to include consent language authorizing
communications to telephone numbers provided in the forms.
• Amend hospital admission or intake forms to specifically indicate whether the telephone
number provide is a residential land line or a cellular number.
• Utilize “call scrubbing” software programs and technology prior to the telephone number
being loaded for an auto-dialer campaign.
• Reduce or eliminate auto-dialer calls to the Fort Lauderdale (954) and Miami (305) area
codes which have the highest number of TCPA cases.
• Avoid call frequency to less than 50 calls to avoid federal court jurisdiction.
• Manually dial all cellular telephone numbers when prior express consent can’t be
established by written documentation signed by the patient.