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Are Debt Collectors Allowed to Call Your Cell Phone Number?

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    Are Debt Collectors Allowed to Call Your Cell Phone Number?

    Here's some interesting info that I found about the TCPA and collection calls involving cell phones...

    (To make a long story, short, the answer is No, they are not allowed to call you on your cell phone unless you give them express consent to call your cell phone number BEFORE they place the call to your cell phone. Otherwise, they are violating the TCPA. Tell them they are violating the TCPA if they call you on your cell phone and see what their response is, and post it in this thread. Thanks!)

    " The U.S. Court of Appeals for the Ninth Circuit has amended a recent decision in which it suggested that prior express consent under the Telephone Consumer Protection Act (TCPA) for telephone calls made to mobile phones for the purpose of debt collection could exist only if consumers gave their cell phone numbers to creditors at the time of the transaction giving rise to the debt.

    In Meyer v. Portfolio Recovery Associates, plaintiff Jesse Meyer, on behalf of himself and a putative class, alleged that debt collection service Portfolio Recovery Associates (PRA) violated the TCPA by using an automated dialer to call debtors' cell phones without obtaining prior express consent. Meyer moved for a preliminary injunction and provisional class certification. The district court granted the motion, and PRA appealed. The Ninth Circuit affirmed (read our alert on the Ninth Circuit's October 12, 2012, opinion here).

    In its opinion, the court expressed a strict interpretation of a Federal Communications Commission (FCC) opinion regarding the meaning of "prior express consent" in the context of debt collection:

    Pursuant to the FCC ruling [In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, Request of ACA Int'l for Clarification and Declaratory Ruling, 23 FCC Rcd. 559, 565 (Jan. 4, 2008)], prior express consent is deemed granted only if the wireless telephone number was provided by the consumer to the creditor, and only if it was provided at the time of the transaction that resulted in the debt at issue. Id. at 564-65. Thus, consumers who provided 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 for purposes of the TCPA.

    These two sentences in the Ninth Circuit's opinion resulted in much discussion regarding their significance, with some legal commentators noting that the court's language was highly ambiguous and troublesome, if not potentially frightening, and flew in the face of business reality. The Ninth Circuit's opinion also raised questions about best practices in the debt collection industry, including whether creditors and debt collectors could use cell phone numbers that consumers voluntarily provide creditors and debt collectors after the date of the initial transaction but during the course of the debtor relationship. After all, transactions such as home mortgage loans can continue for years, if not decades, and consumer contact information, especially phone numbers, is likely to change over the course of the parties' relationship.

    Since the court did not directly address the issue, and the court's restrictive interpretation of the FCC order was not central to the court's determination, we concluded that the Ninth Circuit's opinion left room for creditors and debt collectors to use later-provided cell phone numbers from debtors, provided they obtain subsequent express authorization from debtors to contact them at these new numbers for purposes of debt collection. For cell phone numbers later provided by debtors, however, we cautioned that creditors and debt collectors must make clear that they may contact debtors at those numbers for purposes of debt collection and that they must obtain subsequent express consent to do so in writing.

    In late October, PRA filed a petition requesting a rehearing before both the original three-judge panel and the entire Ninth Circuit, arguing in part that the panel's statement that consent cannot be provided after the original transaction contradicted the FCC's 2008 ruling. The American Financial Services Association, together with the California Financial Services Association and the American Bankers Association, filed amicus curiae briefs echoing this same concern.

    On December 28, 2012, the Ninth Circuit denied the petition for panel rehearing and rehearing en banc, but amended the opinion to replace the two sentences above with new language:

    Pursuant to the FCC ruling, prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed. Id. at 564-65. PRA did not show a single instance where express consent was given before the call was placed. Id. at 565.

    The court's clarification now makes clear that in the Ninth Circuit, prior express consent to call cell phone numbers in connection with a debt may be obtained from debtors at any time, so long as that consent is obtained before the call is placed. Creditors and debt collectors still should not use autodialed or prerecorded messages for numbers obtained solely through skip-tracing (the process of developing new consumer telephone, address, job, or asset information or verifying the accuracy of that information) and should use only a live operator to manually dial those numbers. Prior express consent for TCPA purposes must come from the debtor.

    Prior express consent also is limited to the specific phone numbers the debtor voluntarily provides with respect to a particular debt. Debt collectors may not use mobile numbers voluntarily provided in connection with one debt to fulfill TCPA consent requirements for another debt, even if the debts involve the same creditor (e.g., debtor has two delinquent credit card accounts with the same bank but has voluntarily provided a mobile number with respect to only one account). Creditors or debt collectors must obtain prior express consent for each specific debt if they want to utilize autodialed and prerecorded messages.

    Last, creditors and debt collectors should always provide clear notice to consumers that they may be contacted at the telephone numbers they provide in connection with their debts. This consent should be obtained in writing if possible, especially with respect to mobile numbers."
    The world's simplest C & D Letter:
    "I demand that you cease and desist from any communication with me."
    Notice that I never actually mention or acknowledge the debt in my letter.

    #2
    When creditors started calling Hubby's cell phone, He told them not to call , this is place of business and I am givng you notice not to call me on this number. It seemed to work, a few called a couple times then they stopped. He waited 30 months of not paying to finally file.
    chpt 7 ,5-2009

    Comment


      #3
      we had a few call the cell phone but we just blocked the calls.

      you can also put your cell number on the Federal NO call list. although, i know collectors have a right to contact you, if you owe money, just again, not via the cell phone. they do it anyway if they have the number. i have learned to NEVER ever give out my cell number to ANY company, even ones that i have/had good relationships with.

      thanks for the info GoingDown!
      8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

      Comment


        #4
        The sticky point with cell phones is the auto-dialer. At this time, you can not use an auto-dialer without the consent of the debtor. However, it is standard practice to call cell phones without using an auto dialer and it is the opinion of most in the collections industry that this is legal.

        Most creditors/vendors/etc. are now having statements like this added to their tos that specifically grant them permission to call you on any number with their auto dialer. It's getting hard to get around that with the major creditors, for if you connect with them thru the internet, many make you agree to this before continuing on to your account information.

        Cell phone numbers obtained from skip tracing or other sources are most certainly off limits using an autodialer.
        All information contained in this post is for informational and amusement purposes only.
        Bankruptcy is a process, not an event.......

        Comment


          #5
          correct, as far as I know, there is not specific prohibition against calling a cell phone.

          Comment


            #6
            The one good thing about the cell phone calls, is auto-blocking for any unknown number. I also have an app called Call Filter that works great. Every time I'd see a new unrecognized number on my missed call list, I'd add it to Call Filter. They could robo-dial all they want, and I wasn't bothered.

            Comment


              #7
              The boot camper I spoke to said it was a violation.
              If I'd been saving all those calls I'd have enough to pay off my debts by now

              Keep On Smilin'

              Comment


                #8
                boot camper.... ???
                8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

                Comment


                  #9
                  So what happens when you only have a cell number, no land line. That would be the only contact number a creditor would have. I never told them what kind of phone it is. I had plenty of robo calls. I know a lot of people have dropped their land line.

                  Comment


                    #10
                    Originally posted by bcss View Post
                    So what happens when you only have a cell number, no land line. That would be the only contact number a creditor would have. I never told them what kind of phone it is. I had plenty of robo calls. I know a lot of people have dropped their land line.
                    that is SUCH a GOOD question. not that i have the answer, i'll be awaiting along with you.
                    8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

                    Comment


                      #11
                      Originally posted by tobee43 View Post
                      boot camper.... ???
                      That subgroup of bk attorneys who have specialized training with Max Gardner. They go after FDCPA violations with a vengeance. Some people think they are extreme, but I think they are the Batman of today Gardner runs a "camp" at his huge retreat- although I think I read he was quite ill and is not currently running them.

                      If/when we ever get around to filing, I'd seriously consider using our local one. Tough choice between that and a trustee lol.

                      Keep On Smilin'

                      Comment


                        #12
                        Originally posted by bcss View Post
                        So what happens when you only have a cell number, no land line. That would be the only contact number a creditor would have. I never told them what kind of phone it is. I had plenty of robo calls. I know a lot of people have dropped their land line.
                        That is one of the problems with collections today. The law has not kept up with the technology, ie, the elimination of the landline.

                        With that being said, it remains illegal to robo-dial your cell phone unless you have given permission. Your cell phone # is relatively easy to find, however it can not be placed into a status for robo-calls.

                        Once again however, it can be dialed by a person.

                        All of the major players in the collections industry, along with the collection associations, are lobbying Congress to get the laws changed/updated. You can look for that to happen within the next couple of years, and then.... you'll start seeing legal robo calls to your cell phone.
                        All information contained in this post is for informational and amusement purposes only.
                        Bankruptcy is a process, not an event.......

                        Comment


                          #13
                          ahhhhhh, keepmine. have you been to one of his boot camps???

                          he sounds so motivated! i love the extreme! i copied and pasted the florida active members!! i just waiting for chase to bust on me ONE more time

                          frogger: sad however, most likely true.
                          8/4/2008 MAKE SURE AND VISIT Tobee's Blogs! http://www.bkforum.com/blog.php?32727-tobee43 and all are welcome to bk forum's Florida State Questions and Answers on BK http://www.bkforum.com/group.php?groupid=9

                          Comment


                            #14
                            Wow, I must have over 900 calls recorded on my Google voice. I forwarded all my calls from my cell phone for a while on to it. There still there, I've never erased them. Pages and pages of them. Capital One was one of the worst. I bet somewhere in my contract I gave them permission to call.

                            Comment


                              #15
                              tobee, I would love to send my in-house atty to camp but it's quite pricy.... many k's... and we are.... bk
                              i wonder if the Fresh Air Fund will send him lol....

                              Keep On Smilin'

                              Comment

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