Posted: December 12th, 2016
By: Anna-Bryce Flowe*| Staff Writer
We’ve all gotten those annoying calls to our cell phones with an automated voice on the other end of the phone trying to sell us a cruise or a trip for two to the Bahamas; even creditors use these automated voices to keep us on the line while they try and collect on debts owed, refinance our cars, or upgrade us to a new credit card! For years people have used the typical “ TAKE ME OFF YOUR LIST!” demand as a means of dodging these unwanted calls to their landlines. But, is this demand to cease calling effective when the calls come to your cell phone? What about when you provide your cell phone number to the calling party? And, who— by law—is actually able to keep calling you with these “robocalls” regardless of your attempts to remove your number from their “List?”
In 1991, President Bush sought to give those answering their phones some peace of mind. The Telephone Consumer Protection Act (the “TCPA”), passed by Congress in 1991 and codified as 47 U.S.C. 227, restricts telemarketers from calling with solicitations and using autodialer telephones to make those calls; the TCPA covers automated calls, text messages, voice messages, and faxes. What’s an autodialer? These are the normal mode by which telemarketers and collectors simultaneously dial multiple debtors in an effort to reach as many people as possible. These calls are usually evidenced with a short pause that happens right before the call connects to a speaker on the other end. The TCPA has specific regulations based on the content of calls that are made, who places the call, the relationship of the parties, and the type of phone number dialed, landline or mobile. Because only about 40% of households still have landlines today, there has been a constant uptick in TCPA disputes related to cell phone calls. People want to know how they can avoid these calls coming straight to them at work, at school, or even in the car?
Interestingly, the TCPA specifically prohibits automated calls, pre-recorded messages and text messages to cell phones. Thus, every time a debt collector auto-dials a cell phone it violates the law, unless the consumer previously gave the debt collector or telemarketer permission to call them. This is known as “prior express consent” and is the most common defense by companies sued under the TCPA in recent years. But, what does this consent look like? Can a party revoke consent? Are collection agency’s exempt since they are simply trying to collect on debts?
In 2015, the Federal Communications Commission (the “FCC”) provided answers in its declaratory ruling. Continually, courts have turned to the FCC for help and given deference to Order’s, such as declaratory rulings, published by the FCC on what constitutes “express consent” by a debtor.Courts “defer to the reasonable interpretations of expert agencies [like the FCC] charged by Congress to fill any gap left . . . in the statutes.” In July of 2015, the FCC published an Order interpreting what constitutes “prior express consent.” Moreover, it explained what establishes revocation of this consent by a party?
Firstly, the FCC’s Order reiterated a stance declared in a 2008 FCC Order, that “the provision of a cell phone number to a creditor, 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.” Further, if the number is provided during the transaction that gave rise to the debt, the debt collector is free to give it a ring. Where a debtor provided his number, a call to collect on a debt owed was not banned even where it was a third party collector; an intermediary, such as the financing bank, could provide third-party collectors with the debtors cell phone information. The 2015 Order clarified that “express consent” could come in the form of the filling out of a credit application or over the phone while applying. The bank or collection agency must prove in a legal dispute that the consumer provided “express consent.”
But, can a consumer revoke this consent by asking the caller to stop calling? According to Section 3(b) of the 2015 Order, yes! The FCC explained that “consumers have a right to revoke consent using any reasonable method, including” written or oral revocation. Thus, although “provision of a cell phone number as part of a loan contract demonstrates express consent by the cell phone subscriber to be contacted at that number,” this does not prevent the consumer from revoking in any form or fashion the debtor deems appropriate. The FCC refused to designate possible revocation methods. Although neither the FCC nor the courts have explicitly addressed what reasonable revocation entails, courts are now looking to the direct and undisputable nature of the revocation and its delivery method (i.e. letter, response to a call, call to the collection agency, etc.)
Still, one thing is for sure: “TAKE ME OF YOUR LIST- DO NOT CALL THIS NUMBER AGAIN” will likely do the trick! So next time you get that annoying call from a debt collector on your cell and want them to stop, it is wise to do two things: pay your bill…. And revoke consent!
Anna-Bryce Flowe is a second year law student at Wake Forest University School of Law, where she is also a member of the Wake Forest AAJ Trial Team and Honor Council Treasurer. She holds a degree in Politics from New York University and worked for AT&T’s Premier Client Group, Corporate Sales before starting law school. Upon graduation, she plans to practice as a complex civil litigator, with an emphasis on business and international law.