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TCPA

The Telephone Consumer Protection Act of 1991 (TCPA) is the primary law in the U.S. governing the conduct of telemarketers. Its primary regulator is the Federal Communications Commission (FCC). The TCPA restricts the use of dialers, prerecorded voice messages, SMS text messages received by cell phones, and the use of fax machines. As such, debt collectors often find themselves restricted in the communication technology they can use, especially when the technology is not explicitly mentioned in the law. For example, until the FCC issued a declaratory ruling in 2008, the ARM industry was tacitly restricted from using autodialer technology to call mobile phones. Similarly, the use of text messaging is currently a legal gray area for debt collectors.

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ARM Firms Should Assess Multidistrict Litigation for Simultaneous FDCPA and TCPA Cases

Collection agencies, debt buyers and credit granters are often under siege, forced to defend against identical claims on multiple jurisdictional fronts, regardless of whether the claims are on behalf of an individual or a putative class. One strategy for consolidating the defense of identical claims is to file a motion with the U.S. Judicial Panel on Multidistrict Litigation (MDL) to transfer claims to a single venue.

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TCPA Plaintiffs Skipping ARM Firms for Claims, Shifting Liability to Creditors/Originators

A lawsuit filed in federal court in New York this week is seeking class action status under the TCPA. Named in the case is a major utility and nearly all of its subsidiaries and parent companies, including global holding firms, even though the alleged violation was committed by a third party debt collection agency. It is a continuation of a trend that sees plaintiffs skipping collectors and going straight after the big money.