A blog post

Proposed Act Would Permit Debt Collectors to Use Auto-Dialers to Call Cellular Telephones

Representatives Lee Terry (R-NE) and Edolphus Towns (D-NY), recently introduced the Mobile Informational Call Act of 2011 (H.R. 3035, 112nd Cong., 1st Sess. (2011)), in the House of Representatives that contains sweeping changes to the Telephone Consumer Protection Act (TCPA), the most significant of which would permit debt collectors to use automatic telephone dialing systems (auto-dialers) to call a person’s cellular telephone. This proposed Act, which would amend certain provisions of the TCPA, can be viewed on the U.S. Government Printing Office’s website (Mobile Informational Call Act of 2011).

You can view the current Telephone Consumer Protection Act, as it exists now, on Lapin Law Offices’ StopBadCollectors website.President Obama himself suggested changing the TCPA, although not to the same extent as the proposed act, in his: Living Within Our Means and Investing in the Future: The President’s Plan for Economic Growth and Deficit Reduction Report, released in September of 2011. Page 28 of the Report states:

Allow agencies to contact delinquent debtors via their cellular phones.

The Administration also proposes to amend the Communications Act of 1934 to facilitate collection of debts owed to or guaranteed by the Federal Government, by facilitating contact of delinquent debtors who are most readily reached on their cell phones. This provision is expected to provide substantial increases in collections, particularly as an increasing share of households no longer have landlines and rely instead on cell phones.

What Would Change

In general, the TCPA, as it exists now, does not permit debt collectors to use an automated dialing system or an artificial or prerecorded voice when calling a cellular telephone. The proposed Act alters the definition of “automatic telephone dialing system” although the change does not seem very significant. Currently, the TCPA defines an “automatic telephone dialing system” or auto-dialer as:

equipment which has the capacity-

(A)      to store or produce telephone numbers to be called, using a random or sequential number generator; and

(B)      to dial such numbers.

The Mobile Informational Call Act of 2011 would basically remove these restrictions by adding an extremely expansive definition of “prior express consent,” which is what has limited debt collectors under the current law. Subsection (3) ofthe TCPA (47 U.S.C. 227) would provide:

(3)      The term ‘prior express consent’ means the oral or written approval of a person–

(A)      for the initiation of a telephone call to such person by or on behalf of an entity with which such person has an established business relationship; and

(B)      that is provided when such person purchases a good or service or at any other point during such relationship.

A person who provides a telephone number as a means of contact evidences consent under this paragraph.

The proposed Act would, in effect, eliminate the distinctions between landlines and cellular phones as you would have given “consent” to any call to any phone number you have. It goes beyond President Obama’s Report as it extends “consent” to all entities, not just those attempting to collect a governmental debt.

Support for H.R. 3035 has been voiced by ACA International, the Association of Credit and Collection Professionals, which according to its website: “Brings together more than 5,000 members worldwide, including third-party collection agencies, asset buyers, attorneys, creditors and vendor affiliates.” Their support is not surprising as their members would be the ones who could start use auto-dialers without fear of the current TCPA penalties.

The Problems Created by the Proposed Act

The Representatives who proposed the Mobile Informational Call Act of 2011, as well as President Obama himself, seemingly ignore the fact there are still significant differences between landlines and cellular phones. Initially, there is a different cost to the recipient of a call depending on if it is made to a cellular or landline. Other than regular monthly charges for a landline, there is no additional expense for receiving a call. However, each cellular call, unless the consumer has an unlimited voice plan, causes a “charge” to the consumer’s account, whether that “charge” is an actual cost or the reduction of the consumer’s minutes. In addition, unlike landlines, people change cell phones number more often. If you are the unfortunate recipient of a phone number that use to belong to someone who owed a debt collector money, expect to receive numerous auto-dialed calls. Moreover, under the Fair Debt Collection Practices Act (FDCPA), which allows only one statutory damage award (up to $1,000.00) against a debt collector no matter the number of violations committed, the TCPA permits statutory damages (up to $1,500.00) for each prohibited “call.”

While we all want an economic recovery and a reduction of the national debt, the changes proposed in the Mobile Informational Call Act of 2011 would not achieve these goals and would significantly reduce consumer rights and protections. It would open the flood gates for debt collectors, on any type of debt, to use auto-dialers, which permit a much higher number of calls to be made at a much lower price. Permitting debt collectors, on non-governmental debts, almost free reign to contact consumers will not achieve the President’s goal. The proposed Act will do nothing but decrease consumer’s rights against debt collections and increase the number of complaints. A better solution would be limiting the amendment to only governmental debt, which is already treated differently under a number of different laws, such as bankruptcy.

What You Can Do

Lapin Law Offices urges you to contact your Representatives and Senators to oppose these sweeping changes to the TCPA, which will further weaken consumers against unscrupulous debt collectors. Nebraskans can contact your United States Congressional Members by email, mail, website submission or telephone call. Their contact information can be found:

United States Senators

Ben Nelson
Mike Johanns

United States House of Representatives

Jeff Fortenberry
Lee Terry
Adrian Smith

About Lapin Law Offices

Lapin Law Offices represents consumers harassed or abused by debt collectors and telemarketers under the FDCPA and TCPA. You can learn more about us and about your rights by calling us at 402-421-8033 or on our websites: Lapin Law Offices or StopBadCollectors.com.

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Jeffrey Lapin

Lawyer, Founder and Owner at Lapin Law Offices
I am a trial lawyer and the Founder and Owner of Lapin Law Offices. I represent injured, abused and disabled clients with caring, passion and dedication in Lincoln and throughout Nebraska.

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