The Telephone Consumer Protection Act of 1991 and the FCC Regulations implementing the TCPA were enacted to control the use of automatic dialing and announcing devices (“ADAD”s), predictive dialers, prerecorded and artificial messages, and caller identification. Some parts of the TCPA and regulations apply to all users of such devices and other parts of the TCPA and regulations only apply to telemarketers using devices. Pure debt collection, without the offering of any collateral goods or services, is not telemarketing. Therefore, the majority of the provisions of the TCPA do not impact collectors.
One part of the TCPA that does impact collectors is the prohibition of using autodialers (though humans can do legally dial the number themselves) to place calls to any emergency number, any guest room or patient room in a hospital, health care facility, elderly home or similar establishment; any wireless telephone; and any other number for which the debtor is charged for the call. Other regulations impacting collectors are the prohibitions against dialing numbers merely to see if they are connected to a facsimile or voice line and against tying up multiple phones lines of businesses at the same time.
Several key provisions of the TCPA do not impact collectors, because they are not telemarketers. Some of the inapplicable provisions are:
- The ring duration requirement, which requires telemarketers to let a phone ring for at least fifteen seconds
- The abandoned call requirements, which limit abandoning calls that are answered by a live answerer to no more than three percent of all calls that are answered live over a thirty-day period
- The two-second transfer rule, which requires transferring a call that is answered by a live answerer to a live caller or a precorded message containing the name and phone number of the caller
- The record maintenance provisions documenting these inapplicable provisions are equally inapplicable to collectors.
- The caller ID requirements to transmit caller identification including a telemarketer’s phone number and, when available, a caller’s name.
State laws providing more strict or less strict regulation of automated dialing and announcing devices than the TCPA may apply to debt collectors depending on the definition of the applicable users contained in those laws. Therefore, a review of a state’s laws wherever a collector may be terminating calls should be made for compliance.
When making such a review, one should pay attention to the definition of ADADs and the scope of users controlled and exempted from control by the particular state law.
State laws often contain circuitous references that are unclear. For example, Illinois has an exemption for prior or existing business relationships, except that the exempt ADAD user must still comply with call-termination requirements and caller identification requirements.
Often, there is an exemption from ADAD regulation if the ADAD is used to contact a party with whom the caller has a established business relationship. The exemption then turns on the definition of an “established business relationship.”
Established business relationships may be limited in time. For example, some states limit established business relationships to those arising in the previous two or three years. If a delinquent account is six years old, does the current collector have an established business relationship with the consumer?
Established business relationships may also be limited, as is done in Nebraska, to those involving voluntary two-way communication, which has not been previously terminated by either party.
Some state laws also exempt users of ADADs if the ADAD is being used for a commercial purpose that does not include the transmission of an unsolicited offer to sell any good or service.