The Telephone Consumer Protection Act of 1991 (TCPA) was passed by Congress into consumer law for the purpose of limiting the use of automated dialing systems in debt collection practices. Debt collectors have been struggling ever since for control over dialing cell phones in order to collect debts.
Recent Court Activity Affecting Debt Collectors and Cell Phones
The U.S. Court of Appeals for the Ninth Circuit recently amended a decision suggesting that “prior express consent” under the TCPA for calls made to cell phones for the purpose of collections can exist only if consumers gave their cell phone numbers to the creditors at the time of the transaction giving rise to the debt. In their ruling, the Ninth Circuit Court defined prior express consent as being granted only if the wireless telephone number is provided by the consumer to the creditor, and only if it is provided at the time of the transaction that resulted in the debt at issue. Therefore, it can be understood from the court’s interpretation of prior express consent that consumers who provide their cellular telephone numbers to creditors after the time of the original transaction are not deemed to have consented to be contacted at those numbers. According to the Ninth Circuit, this conclusion would coincide with the TCPA.
On a later appeal to the Ninth Circuit’s decision in December of 2012, the court now has clarified the original decision to say that “prior express consent” now means a creditor is allowed to call cell phone numbers in connection with a debt by obtaining consent from debtors at any time, so long as that consent is obtained before the call is placed.
In light of the fact that the original language used by the Ninth Circuit Court in their ruling was somewhat ambiguous, the change is a little refreshing. Prior to the clarification, the debt collection’s industry and creditors in general were struggling with whether or not they had the right to use a cell number provided by a customer in normal everyday business activity of collecting a debt. This clarification, in particular, helps resolve the questions raised for creditors like the mortgage banks who must contact their clients for a variety of reasons. What still cannot be done is to make these calls through automated conveyances.
Practical Implications for Debt Collectors and Calling Cell Phones
If there is anything practical that should come out of such court proceedings, it is the guidelines provided by the rulings to help direct debt collectors in their use of contacting cell phones in their collection activities. There are two sides to every coin, and the debtors have a side as well as the creditors.
From a strict practical point of view, calling a cell phone is much different than calling a land line. A land line is just what it says. It is attached to one location and to a structure. Calling a land line involves no one except the person answering the phone. Most likely, the person answering a land line is the one associated with the phone and the call is normally private.
On the other hand, a cell phone is not of any use if it is not attached or with the person carrying it. Therefore, the cell phone is an extension of the person carrying it. When a person is contacted by a cell phone, privacy issues can arise that can include a person’s place of business or work.
Should debt collectors be allowed to call cell phones at will? I personally like the TCPA guidelines and the Ninth Circuit Court rulings.
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