In Spite of FCC, 70 Percent of TCPA Decisions in Last 14 Months Positive for Industry

You may not know that insideARM maintains a “TCPA Resources” page to provide the ARM community a destination for timely and topical information at any time on The Telephone Consumer Protection Act (“TCPA”). This page is generously supported by LexisNexis Risk Solutions. See it here or find it in our main navigation bar from any page on insideARM.com.

Updated on a regular basis, one of the important elements of the page is a chart of significant TCPA cases. Case information – including an “at-a-glance” opinion of whether the decision was positive or negative for the ARM industry –  is provided by the Bedard Law Group (“BLG”) of Atlanta, Georgia. BLG principal John Bedard is a regular contributor to insideARM events, most recently as a moderator of a highly rated session at the inaugural First Party Outsourcing Summit last October. Attorney David Kleber is also a regular contributor to insideARM, having most recently authored a thoughtful review of TCPA activity in 2015, published in December, 2015.

As of today, the chart has been updated with case decisions through February 17, 2016.

Spotlight on Recent Updates

Baisden v. Credit Adjustments, Inc.

The Sixth Circuit Opinion determined that the FCC has ruled that providing a cell number to the creditor as part of an application constitutes prior express permission under the TCPA to call that number. To qualify under this ruling, the creditor need not necessarily obtain the number directly to the consumer. Prior express consent is presumed when a consumer provides a cell phone number to one entity as part of a commercial transaction, which then provides the number to another related entity from which the consumer incurs a debt that is related to the initial transaction. More specifically, the provision of a cell phone number to a hospital that then provides that cell phone number to an affiliated physicians’ group that provided medical services to a consumer arising out of the same occurrence can constitute “prior express consent” under the TCPA.

Baird v. Sabre, Inc. and Roberts v. Pay Pal, Inc.

Two other cases from the Ninth Circuit provided decisions that were positive for the ARM industry on the issue of “Prior Express Consent.”

Norman v. AllianceOne Receivables Management, Inc.

The Seventh Circuit ruled on the admissibility of business records to prove whether an Automated Telephone Dialing System (“ATDS”) was utilized by the defendant.

insideARM Perspective

There is not yet a consensus among the various circuits on the two key TCPA issues:

1. What constitutes “Prior Express Consent”
2. “The definition of an ATDS”

The positive “prior express consent” cases should provide some level of comfort to ARM businesses. But, we still haven’t seen cases on the various methods of revoking consent. The ATDS definition cases are not as helpful. That issue is even more challenging in light of the FCC’s July, 2015 TCPA Order.

Additionally, there have been a number of TCPA cases that have been effectively “suspended” pending the consolidate appeal of the aforementioned July, 2015 Order. Readers should continue to monitor this page and the daily ARM insider for additional TCPA updates.