Everyone, hopefully, knows that the Telephone Consumer Protection Act (‘TCPA’) applies to telemarketers, but does the TCPA apply to debt collectors as well? In short, yes, the TCPA does apply to debt collectors, not just telemarketers. There are some key differences, however, that you should know and understand. These differences mostly deal with how consent is given. This article will explain what the TCPA is, when it applies and the key differences in the TCPA when dealing with debt collectors.
What Is the TCPA?
Enacted in 1991, the TCPA is an attempt to address an ever-growing number of telephone marketing calls that were wholly unregulated and often harassing in nature. Specifically, the TCPA places restrictions on the use of automatic telephone dialing systems and artificial or prerecorded voice messages. The TCPA was revised in 2012 to require telemarketers to, among other things, obtain prior express written consent from consumers before robocalling them.
When Does the TCPA Apply to Debt Collectors?
The TCPA applies to debt collectors when they are using an autodialer or pre-recorded message to ring your cellular phone, send a fax or, potentially, ring your VoIP phone. Violation of the TCPA occurs when consent has been removed and they make a subsequent call. Removal of consent need not be in writing, however, it is highly encouraged. See below for our recommendations on removing consent.
Another key difference is if the number is a land-line number. Because debt collectors are not solicitating or advertising, the TCPA does not generally protect an individual’s landline. That said, in situations where the volume of calls or the nature of calls becomes harassing, the FDCPA and even state law statutes may be available to make them stop.
How Did the Debt Collector Get My Consent?
Consent is where the key difference exists between how the TCPA applies to a debt collector and a telemarketer or sales call. Although telemarketers must also obtain prior express written consent, it is usually obtained by checking a box consenting to be contacted at that number on something like a signup form or similar. Debt collectors, however, get the consent they need when you add the number to the original credit application.
You need not give the debt collector consent directly. Although the FCC determined that prior written consent was needed to call a consumer’s cell phone, a Federal Court of Appeals later clarified that by holding that consent is only given if the consumer provided their cell phone number at the time of the credit application.
This means that a debt collector is given consent when you added your cellphone number to the credit application that formed the underlying basis of the debt. The debt collector would not have prior written consent to robocall any number not on the original application.
How Do You Remove Consent from Being Robocalled?
The best way to remove your consent for a debt collector to call you with an autodialer is to send a certified letter. This is not a requirement, but the certified letter process gives you proof that the letter was sent if they continue to call and a TCPA suit is filed in response. The certified letter will show when the letter was sent, who it was sent to and that the letter was ultimately received. Again, this is not a requirement, but it is highly encouraged.
If the need for litigation arises, you do not want to be stuck in a he-said-she-said situation. The few dollars and little time it takes to write a letter is a very small price to pay to have indisputable evidence that consent was revoked. Consent is the key issue in matters like this so you should do everything that is reasonably within your power to ensure that the revocation of consent cannot be questioned.
This also applies to individuals who never gave their consent to begin with. If you are certain you never gave consent at all, send a letter anyway. Again, leave no question to whether consent did/does not exist. That way, even if consent did exist and you simply forgot you gave it, that consent would only apply to the calls made prior to your revocation of consent.
What Should I Do When a Debt Collector Calls?
Log it. Answer every call you can and log as much information as you can. If you have already revoked consent, indicate as such before ending the call. It is suggested to keep a logbook with you or an app where you can keep track of every call that comes in. Be diligent in your efforts. If you are unable to answer the call, log it and indicate as such. If they leave a voicemail, keep it and store it in a safe place. Make sure the time and date of the voicemail is stored with it.
When you answer the call, listen for any audible noises that indicate an autodialer is being used. It is unlikely you will as autodialer technology has progressed rapidly but diligence and consistency is key here. If this is the first time this debt collector has communicated with you, make sure you make a special note of this. The debt collector is required to give certain information during the first phone call or in writing within 5 days after first contacting you. They must provide:
- How much you owe,
- The name of the creditor it is owed to,
- How to get the name of the original creditor, and
- What to do if you think the debt isn’t yours.
The first communication with you starts that 5 day clock which is why it is imperative to make special note of this call. If they fail to provide this information, they may have violated more than just the TCPA and may have also violated the Fair Debt Collection Practices Act (‘FDCPA’).
With proof consent has been revoked and a call log demonstrating continued calls to your cell phone, you can now potentially file a claim under the TCPA. We do, however, recommend engaging an attorney to assist you.
Can You File an FDCPA Claim & TCPA Claim Simultaneously?
Yes and it is common to do so. It is very common for a debt collector to have violated the FDCPA with the same actions that have violated the TCPA. This is usually in 15 U.S. Code § 1692d(5), a specific provision of the FDCPA which prohibits the debt collector from ringing or engaging any person in telephone conversation repeatedly or continuously to annoy or harass. If you have removed your consent to be called on your cell phone, then an argument could be made that their only purpose for continued calls is to harass. This would allow you to bring both an FDCPA and TCPA claim. If you would like to know more about how to file an FDCPA claim, we have articles discussing the topic in our knowledge section.
Should I Hire an Attorney for a TCPA Claim?
We believe it is in your best interest to at least consult with an attorney prior to proceeding forward with a TCPA claim. At Starks Law, we offer free, no obligation telephone consultations for anyone experiencing harassment from a debt collector. Although it is not necessary to have an attorney represent your interest, it is highly encouraged.
An experienced attorney can help ensure that you are bringing all claims that are available to you to ensure you are getting maximum recovery. Additionally, some claims, such as those brought under the FDCPA, have a fee shifting provision. This means that the fees for the attorney you engage are paid by the creditor in the event you are successful in your claim. TCPA claims are often brought in conjunction with FDCPA or even FCRA claims. This means it is common for clients to engage an attorney without upfront expense when bringing a suit to put an end to debt collector harassment.