Case Dismissal Upholds FCC Declaratory Ruling on Cell Phone Use in Collections

The recent dismissal of a case in district court is likely to mean a reduction in lawsuits against collection firms, according to Anthony M. Beato, federal regulatory counsel for ACA International.

The case, Leckler vs. CashCall, which was vacated and dismissed without prejudice by the federal court in the Northern District of California, means that debtors and their attorneys won’t be as quick to seek to overturn the Federal Communication Commission’s ruling that, under the Telephone Consumer Protection Act (TCPA), an individual provides express consent to be called at her wireless number via autodialer or prerecorded message if she knowingly releases her wireless telephone number to the calling party.

The FCC previously noted that providing a wireless telephone number to a creditor, such as part of a credit application, would constitute prior express consent by the individual to be contacted at that number (“FCC: Collectors May Call Cell Phones with Autodialers, Prerecorded Messages,” Jan. 7, 2008). The ruling was filed in response to ACA's request.

Originally, the court rejected the FCC's declaratory ruling, stating the FCC's interpretation of the phrase "prior express consent" was "manifestly contrary to the plain language of the statute, is unreasonable, and therefore is not deserving of deference."

On Nov. 21, 2008, the same court found it did not have jurisdiction to review the FCC's declaratory ruling, and vacated its previous ruling as to the FCC's interpretation of prior express consent.

In the Leckler case, the complainant had written to CashCall – a California-based short-term lender -- requesting that the firm call her on her cell phone and provided the number, according to Beato.

Beato also expects the ruling to bring rise to use of authorization language in standard contracts for cell phones and other products and services that have periodic payments that would permit companies and third party collectors to contact customers via cell phones in order to make collections.

View the Court’s Order.