Ex gave your cell number to debt collectors and now they are calling your Cell? TCPA Telephone Consumer Protection Act may provide some help
A lot of people think it OK for a bill collector to call you on your cell. Well, a lot of times it’s not.
We interviewed attorney Patric Lester, attorney licensed in California, New York and Missouri, who explains why bill collector calls you get on your cell phone may be illegal.
Q. What is this TCPA law? Is it new?
PL Few people, including attorneys, know about the TCPA The Telephone Consumer Protection Act of 1991 (TCPA) was passed by the United States Congress in 1991. The current version is at 47 U.S.C. 227.
The focus is in this section of the act 47 USC § 227(b)(1) Restrictions on use of automated telephone equipment.
It shall be unlawful for any person within the United States – (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice to any cellular telephone service.
The fines are FOR EACH CALL
47 USC § 227(b)(1) (B) an action to recover for actual monetary loss from such a violation, or to receive
$500 in damages for each such violation, whichever is greater, If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times ($1,500) the amount available under subparagraph (B) of this paragraph.
But few people – even most lawyers – don’t know about it.
Regardless it’s a powerful weapon that can be used in state or federal court against those annoying, intrusive debt collection calls on your cell phone.
Congress passed the TCPA to to govern telemarketing. It covers many things including faxes but we’re just going to cover the rule against these people calling your cell phone right now.
The law says – in a nutshell – that companies (including debt collectors and your creditors) can’t call your cell with an autodialer and if they do its $500- $1500 .. And that’s for each call!
PL But they’re 2 small catch’s
1. The calls have to be from an auto dialer (I’ll talk about that more in a minute) and here’s the important one
2. You can’t have given them express consent.
How do they get express consent?
PL: Here’s how. Often when you got the credit card or bought the thing they are now going after you to pay for, you put a phone number on the application. If you put your cell number, the one they’re calling you on, then you gave express consent and they are not breaking the law by calling you.
Q. What about if you call them back with your cell?
PL. No that’s not prior express permission.
Q. Lets get back to the term you used – automatic dialing system. What’s that and how do you know they’re calling you with one of those?
PL Short answer you don’t absolutely know. But most of the industry uses them and usually you can tell when you phone rings and you answer it and there’s a short delay before your hear anything, that probably an automatic telephone dialing system or auto dialer, for short. Odds are if you are getting one of these calls on your cell it’s a company using an auto dialer.
Q. Well I know lots of consumers who get debt collector calls at home are those all these $500-$1500 calls?
PL No what we are talking about is calls to a cell phone. If the call at home is a cell phone that’s the violation. If it’s a land line, while it may also violate the federal law, it doesn’t violate this one.
Other laws like the FDCPA or Fair Debt Collection practices Act apply to what most people would consider harassing calls to land lines by debt collectors.
But here’s the great part of this law we’re talking about now, TCPA.
It doesn’t have to be harassing. Any call they make is against the law. It can be civil and friendly and even helpful, but if its to your cell phone and you didn’t give express written consent for them to call that cell phone they are liable end of story and secondly it doesn’t even have to be a debt collector. It can be the creditor that you owed the money to, to begin with.
All they have to do is call your cell with an auto dialer.
Q. Well how would these people get my cell number?
PL There are a lot of places on the internet where you can look up someone’s cell phone number if you have their name and general area where they live
But more commonly the way they get your cell number is when you call them back on your cell phone when you get a dunning letter or a collection call at home or work and they then “trap” your cell phone number. After that they’ve got it.
Q. So what should they do?
PL A couple of things.
1. Save the record of the phone number that called to your cell. If you know how you should download the messages with a date and time stamp to a digital recorder or computer.
2. Also if they leave messages you need to save those for 2 reasons – They show clearly indisputably who made the call and when.
-Sometimes the messages themselves will violate other laws against harassing phone calls.
3. Save your cell phone bills that have the numbers of the company that called your cell.
4. Finally, call a lawyer who handles these type of cases (like me).
To wrap up, even though we’ve been talking about cell phone calls and the TCPA, any calls made to any phone can violate the FDCPA. There are so many ways to violate that law (See article on this website 17 ways debt collectors break the law when they call you on my website Lesterlaw.com)
You should also contact me if you think a debt collector is harassing you, your family, or calling your neighbors or at work about a debt you owe.
My office number is (314) 231-5900