FCC: Collectors May Call Cell Phones with Autodialers, Prerecorded Messages

Collectors may use predictive auto-dialers and prerecorded calls to contact consumers on their mobile phones, the Federal Communications Commission announced in a ruling handed down late Friday.

Prior to this ruling, the Telephone Consumer Protection Act (TCPA) had generally prohibited auto-dialer and prerecorded calls to a mobile phone unless there was prior consent by the consumer. The ruling goes into effect immediately and applies to collectors, debt purchasers, and creditors, according to collection industry trade group ACA International.

The decision is being viewed as a victory for collectors and the ACA as more consumers move to wireless-only communication. “This is wonderful news. The TCPA was instituted when there were about 50 cell phones in the country,” said Gary E. Wood, president of Collins Financial Services Inc. and debt purchasing trade association DBA International.

“This ends a tremendous amount of litigation over auto-dialer prohibition,” said Rozanne M. Andersen, executive vice president and general counsel at ACA. But Andersen cautioned, “This is not a 100 percent win, there are some remaining questions. But we are analyzing the ruling and providing members with details to ensure they abide by the ruling.”

Indeed, an attorney with a consumer rights organization noted that the creditor, debt purchaser and collector still have the burden of holding, or having access to, a record of the debtor’s proof of permission.

And keep in mind that “cell phone numbers turn over quickly. (An agency) may call the wrong person,” said Lauren K. Saunders, managing attorney of the National Consumer Law Center. “They need to ensure the number is still good for the right person.”

In addition, the FCC ruling applies only to the TCPA, not the FDCPA, and a collector could mistakenly violate one of its provisions if he isn’t careful, she said. “There are a lot of landmines that collectors could step on if they use this for broad-based permission,” said Saunders.

In the ruling, reached on Dec. 28, the FCC determined that autodialed and prerecorded calls made to wireless numbers provided by the called party in connection with an existing debt are made with the “express prior consent” by the called party.

ACA filed a petition with the FCC in October 2005 seeking clarification that the prohibition against autodialed or prerecorded calls to wireless telephone numbers did not apply to collection calls. The FCC ruling was a direct response to the ACA petition.

At issue was the “express prior consent” clause in the TCPA governing the use of wireless numbers. Due to the fee applied to users for incoming mobile calls, the TCPA had been previously interpreted as not granting consent for automated calls.

Providing a creditor with a cell phone number during a credit application “reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt,” the FCC wrote. Collectors may also use the mobile numbers if a consumer gives the number as an alternate contact.

Debt collectors have always been able to use predictive auto-dialers and rerecorded messages to reach traditional wire line numbers, and collectors have also been able to manually dial wireless numbers to reach consumers. But the combination of using those advanced call center technologies on wireless numbers was interpreted as forbidden under the TCPA.

In 2003, the FCC banned the use of auto-dialers and prerecorded messages for calls of any kind made to wireless numbers. The Commission was responding to what it called a “greater nuisance and invasion of privacy than live solicitation calls” in using wireless numbers which were gaining popularity. The fact that consumers were charged for the incoming calls punctuated the FCC’s finding.