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11.10.15 by Andrew Shafer


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The TCPA continues to generate class action lawsuits seeking ruinous damages from targeted defendants.  Unless the Supreme Court grants some relief in the Spokeo case, there really will not be any relief any time soon.  While ACA International did file a petition with the FCC for a rule making (to create safe harbor rules for dialing wrong numbers and other things), the FCC is nowhere near completing the rule making.  Given Washington gridlock, do not expect a legislative fix any time soon.  Moreover, the Chairman of the FCC announced recently that the Commission will issue a series of orders addressing petitions for declaratory relief that have been pending for quite some time.  The Commission has not indicated if, or when, it will address the ACA rule making petition.

            There are things you can do to minimize your TCPA exposure. How can you minimize TCPA exposure?  (You cannot eliminate TCPA exposure unless you dispense with dialer technology completely). Consider the following in-house steps you can take:

          -  First, if a consumer gives prior consent to being called on his or her cell phone using an auto dialer, there is no liability. The best practice is to verify that your originating creditors’ loan documentation contains a provision granting prior express consent.  

          -  Second, scrub all phone numbers to determine if they are cell phone numbers. If they are, and you are unable to verify prior express consent, you proceed at your peril if you do not manually dial the number.

          -  Third, do not use pre-recorded or artificial voice as part of your dialing protocol. This is a separate TCPA violation even if you have the consumer’s consent to use an autodialer (unless of course, they have also consented to prerecorded or artificial voice messages).

          -  Fourth, even if the creditor can show prior express consent through its documents, realize that the cell number given by the consumer several years ago may have been reassigned to someone else.  By skip tracing the consumer you can match the current list of phone numbers for that individual against the number given to you by the creditor.  If the skip traced number does not match the number given to you by the creditor, consider your information as stale. If you do decide to call the number anyway, consider manually dialing it until you can verify that the number is still assigned to the consumer who you are trying to reach. 

          -  Fifth, if you do manually dial cell phone numbers, develop a code in your dialing and account records to reflect that you have manually dialed the number.

          -  Finally, if you are informed that the cell phone number you are dialing is not linked to the consumer you are trying to reach, you should immediately block the number in each account you have for that same consumer to prevent any future dialing.