Present Capacity and Effective Consent: Two Parts of a Compelling TCPA Panel at ACA

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CHICAGO, Illinois — The Telephone Consumer Protection Act played to packed audiences through two sessions at ACA International’s 75th Anniversary Convention & Expo.

At issues for those in the debt industry are:

  • Effective Consent Language
  • Present Capacity

“We have to find a way to make [consent] compelling to creditors,” David Kaminski, one of the presenters and an attorney with Carlson & Messer, told one session. And it was a point that resonated throughout the audience.

For a collection agency to contact a consumer via cell phone, there needs to be express consent. Often that can be obtained at the time the consumer fills out the original creditor’s application.

Simple enough — which should immediately set off any warning bells in your compliance process.

The consent language needs to be clear to the consumer and inclusive for the creditor/collection agency. It needs to make the consumer aware that he could be called for any reason by the creditor and any of the creditor’s business associates — for example, a collection agency.

Getting language about dialers and automatic messaging can’t hurt either, according to Kaminski. Nathan Sturycz, Kaminski’s co-presenter and chief compliance officer at Credit Control, explained why: the most explicit written consent is a better ally in court.

The concept of “present capacity” proved to be a significant wrinkle.

According to the TCPA, an “automatic telephone dialing system” is one that has the present capacity to store or produce and call numbers from a number generator at the time the calls are being made. What “present capacity” means is, however, seems to be a Term of Art that is viewed in different ways by different courts. A debt collector can claim that no automatic dialing is used for telephone calls; however, the mere presence of the capacity to do so is what can put many agencies afoul of the TCPA and the FCC.

One of the attendees I spoke with after one of the TCPA presentations said, “I didn’t learn anything that I didn’t already know — but boy was it comforting to know that so many others are at the same place we are.”

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Posted in Accounts Receivable Management, Collection Laws and Regulations, Debt Collection, Debt Collection News, Featured Post, TCPA .

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  • avatar Randy Hairgrove says:

    Bottom line: If any business associate of a creditor is calling a consumer mobile phone on the creditor’s behalf with an automated dialing device (not to sell or for any other reason), these calls should be allowed. Calls such as these 1) have the presence of an established business relationship between creditor and consumer, which would carry over to the BA; 2) are not various phone numbers being ‘randomly dialed’ from a dialing device. They are specific numbers that are associated with the consumer.

    Furthermore, unlike with telephone solicitations, consumers should not have the ability to ‘opt out’ from these calls. This does not mean the consumer ‘debtor’ would still not have their rights to not be called under FDCPA.

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