The Telephone Consumer Protection Act Presented by: Raymond F. Moats, Esq. February 27, 2014

2 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Overview Telephone Consumer Protection Act of 1991 Fair Debt Collection Practices Act

3 | 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. § Federal Communications Commission Rules and Orders –Debt Collection –Prior express consent & prior express written consent –Automated telephone dialing equipment (ATDS) –Applies to telephone calls and text messages

4 | 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

5 | 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.

6 | 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

7 | 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)

8 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA §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 Regulatory Authority

9 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA 47 C.F.R. § (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

10 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Exemptions Commercial calls for non-marketing purposes Calls from tax exempt, nonprofit entity Political calls Loan Servicing Calls Notices and alerts from: –Airlines –Banks and credit card companies –Schools and universities –Package delivery services –Wireless Carriers (plan usage) –Research calls or surveys

11 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA 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 Identification standard

12 | 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.

13 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Opt-out mechanism –Option announced at beginning of call –If invoked, consumer must be automatically added to callers 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 Amended TCPA Rules

14 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Statutory damages –$ 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 Amended rules

15 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA 47 C.F.R. § (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 Debt Collection

16 | 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 callers state- registered 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 (Feb. 18, 2005).

17 | 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 , 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)

18 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA 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 Prior Express Consent

19 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA 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 Prior Express Consent

20 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Meadows v. Franklin Collection Serv., Inc., 414 Fed App x 230 (11 th Cir. 2011) –Collection calls to debtors mothers 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 TCPAs prohibitions of prerecorded calls to residence. FCC has determined that all debt collection calls are excluded from TCPA coverage. Prior Express Consent

21 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7 th 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 Express Prior Consent

22 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Consent must be clear and specific –Satterfield v. Simon & Schuster, 569 F.3d 946 (9 th 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. Prior Express Consent

23 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Pinkard v. Wal-Mart Stores, Inc., 2012 U.S. Dist. Lexis (N.D. Ala. Nov ) –Pinkard provided her cell phone number when she dropped off her prescription. She received unsolicited text messages from Wal-Mart. –Plaintiff claimed that she didnt give her written consent, however, the court determined that written consent rule wouldnt go into effect until October –Therefore, by providing her cell number to Wal-Mart, Pinkard had consented to receive messages from Wal-Mart. Prior Express Consent

24 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Mais v. Gulf Coast Collection Bureau, Inc., 2013 U.S. Dist. LEXIS (S.D. Fla. May 8, 2013) –Wife provided plaintiffs 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 didnt give prior express consent because it was not reasonable that plaintiff or wife would expect to receive collection calls. Prior Express Consent

25 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Gager c. Dell Financial Services, LLC, 2013 U.S. App. LEXIS (3 rd 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. Revocation of Consent

26 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Emanuel v. L.A. Lakers, Inc., 2013 U.S. Dist. LEXIS (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. Text Messages

27 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA 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. Fair Debt Collection Practices Act

28 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA 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 consumers 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. FDCPA

29 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Questions & Answers Any questions?

30 | The Telephone Consumer Protect Act WELTMAN, WEINBERG & REIS CO., LPA Questions & Answers Thank you for your time. Raymond Moats, Esq. |