FCC OKS CERTAIN COLLECTION CALLS TO CELL PHONES
In response to a petition filed by ACA International, the Federal Communications Commission clarified in a Declaratory Ruling released on January 4, 2008 that autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the “prior express consent” of the called party.
The Telephone Consumer Protection Act regulates the use of automated telephone equipment and prohibits the use of any automatic telephone dialing system to call any telephone number assigned to a cellular telephone service absent an emergency purpose or the prior express consent of the called party. The TCPA also makes it unlawful to place a non-emergency telephone call to a residential line using an artificial or prerecorded voice without the recipient’s consent unless the call is exempted by rule or order of the Commission.
In a 1992 order the Commission, among other things, adopted rules prohibiting the use of autodialed and prerecorded message calls to cell phone numbers. In a 2003 order the Commission clarified these rules. At that time, the Commission (i) affirmed that it is unlawful to make any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number and (ii) found that a predictive dialer falls within the meaning and statutory definition of “automatic telephone dialing equipment” and the intent of Congress.
After considering ACA’s petition and comments submitted, the Commission found that autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are made with the “prior express consent” of the called party, and clarified that such calls thus are permissible. The Commission concluded that the provision of a cell phone number to a creditor (e.g., as part of a credit application) reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt. Prior express consent is deemed to be granted, however, only if the wireless number was provided by the consumer to the creditor and the number was provided during the transaction that resulted in the debt owed.
The Commission noted that should a question arise as to whether express consent was provided, the burden will be on the creditor to show it obtained the necessary prior express consent. Similarly, a creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.
In this Declaratory Ruling, the Commission affirmed that a predictive dialer constitutes an automatic telephone dialing system and is subject to the TCPA’s restrictions on the use of autodialers. It noted, however, that creditors and debt collectors may use predictive dialers to call wireless phones, as long as the wireless phone number was provided by the cell phone subscriber in connection with the existing debt. Where the subscriber has not made the number available to the creditor regarding the debt, the Commission expects debt collectors to be able to utilize the same methods and resources that telemarketers have found adequate to determine which numbers are assigned to wireless carriers, and to comply with the TCPA’s prohibition on telephone calls using an autodialer or an artificial or prerecorded voice message to wireless numbers.
As the Commission suggests, creditors should include language on credit applications and other documents informing the consumer that, by providing a wireless telephone number, the consumer consents to receiving autodialed and prerecorded message calls from the creditor or its third party debt collector at that number.
Debt collectors may wish to consider the impact of this ruling on their practices.
- Judy Scheiderer and Margaret Stolar