TCPA Compliance of Faxing – One Court’s Interpretation
In Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc., we gain the Sixth Circuit’s understanding of how a fax was considered an “unsolicited advertisement.” More…
What is the TRACED Act?
What is the TRACED Act? In the most logistical terms, it’s the Telephone Robocall and Abuse Criminal Enforcement and Deterrence Act. It is a bipartisan bill that was proposed to help “deter criminal robocall violations and improve enforcement of section 227(b) of the Communications Act of 1934, and for other purposes.” Big thanks to TCPAland for their analysis!
But what is it really trying to accomplish, and what happens if it gets passed?
- To sum it up, the TRACED Act “wants to encourage the FCC to broaden the TCPA again.”
- Seeks to reduce the forfeiture penalty to $10k per violation (it is currently $16k)
- Would require the DOJ and the FCC to meet with the CFPB, the Department of State, the Department of Homeland Security, the Department of Commerce and the FTC about whether there are currently any laws that interfere with the TCPA’s enforcement
- Would require the FCC to implement regulations protecting telephone subscribers from receiving non-authenticated calls
Essentially, the end goal for the TRACED Act appears to be a more strictly enforced and more regulated TCPA. If you’re curious, TCPAland outlined the main changes in more depth (and with more authority) here.
Thanks to Marks v. Crunch Fitness, whenever we see a case that references an ATDS, we collectively freeze. Luckily, this case doesn’t even touch the legal definition of an ATDS. Instead, the perceived “loss” for this agency was due to a lack of evidentiary support when filing for summary judgment. Here’s what happened in Camayd v. United Auto Credit Corp.
- After a lawsuit was filed in the Southern District of Florida, the Defendant’s Director of Servicing filed for summary judgment.
- He based the argument on use of software that was a “human-initiated service and outbound dialing system.”
- According to the Director of Servicing’s statement, the dialing system required that the agent “manually input phone numbers into a dialing system and click a button to launch the call.”
- Courts routinely hold that these types of dialing systems are compliant, according to TCPAland.
- This court, however, wasn’t going to let anything get past them. They were skeptical of the validity of the statement provided, as well as the authenticity of the statements made by the Director of Servicing, who did not work for the dialing platform.
- Due to the unconvincing nature of the statement, the court was compelled to dissect other cases involving the dialing platform, some of which were found to be non-compliant.
- Despite the fact that the dialing platform was, in many cases, found to be compliant, a lack of research and evidence led the case to be denied summary judgement.
It’s a harsh world out there. Remember that even if your software is compliant, you should take lawsuits seriously and address them comprehensively. We spoke with a lawyer about what to do when you get a lawsuit, and she shared exactly what the best progression is to take – click here for the interview.
TCPA Compliance of Text Messages Reexamined
Back in August, we shared with you the results of Nelson vs. Receivables Outsourcing, LLC. In this case, it was determined by a court in New Jersey that a text message was not a third party disclosure. Now, we have another ruling regarding the compliance of text messages. This time, the case comes out of the Middle District of Florida. More…
First TCPA Case Referencing Marks’ ATDS Definition
In the District Court of Arizona, the TCPA was called upon to condemn Capital One.The issue at hand? Consent, the DNC registry, and proof of an ATDS.
- Plaintiff Shupe claimed Capital One violated the TCPA by calling after a DNC order was in place
- Plaintiff also claimed that Capital One used an ATDS to call the cellphone in the first place
- In response, Capital One provided their customer agreement on which cardholders acknowledge that Capital One can contact them “using an automated dialing or similar device.”
- The customer agreement also states that if customers provide Capital One their “mobile telephone number, we may contact you at this number using an Autodialer.”
- Plaintiff denied ever receiving or consenting to this agreement. Furthermore, they claimed they revoked consent to receive calls from Capital One.
- Referencing the controversial Marks decision, the court reinforced the definition of an ATDS as equipment that could engage in automatic dialing, regardless of whether human intervention is involved.
- Because the plaintiff was unable to supply evidence of defendant’s ATDS software, the court granted summary judgment and ruled in favor of the creditor, Capital One.
- Important to note is that were it not for the plaintiff’s inability to produce evidence of the use of an ATDS, this case could have gone a lot differently.
- “Plaintiffs bear the burden of providing the elements of their Do-Not-Call claim, including that the calls were solicitations,” according to the court.
Labeling Requirements Under the FDCPA
Plaintiff Smith believed she had grounds for a lawsuit based on the verbiage used on a notice. What are labeling requirements under the FDCPA? A new piece of litigation sheds some light.
Smith received a letter notifying her of outstanding debt. The letter identified PayPal Credit as the client and Comenity Capital Bank as the “original creditor.” This is because, according to court documents, “Comenity Capital Bank is the actual creditor, [but] the bank holds itself out as PayPal Credit in its transactions with consumers and thus would be more familiar with the PayPal name.”
Plantiff was not aware of this method, and so filed a lawsuit under the FDCPA with 2 sides. The first was that Simm failed to list the current creditor. The second was that the letter was false, deceptive or misleading.
The court sided with Simms, finding that the notice stated the creditor information appropriately. Keeping in mind the “least sophisticated consumer,” the court still determined the labeling requirements were met. They determined that based on the letter, it was clear the debt was owed to Comenity.
In Simms case, it was argued the FDCPA does not require the “current creditor” listed in their labeling requirements. The court agreed. It was also found no issue with listing both entities on the notice. In their words, PayPal “properly identified the current creditor because the “least sophisticated consumer” is unlikely to know that Comenity is actually providing the credit line.”
What It Means for You
This case provides insight into FDCPA labeling requirements when listing the creditor. This case confirms an earlier case, Maximiliano v. Simm Associates, that settled a similar dispute. It came down to recognizing the value in helping the consumer recognize the debt by identifying both creditors.
A step past licensing
A collection agency was found liable for contacting consumers in Massachusetts without a license. On behalf of several consumers, the Plaintiff filed a complaint in the District Court of Massachusetts. We’ve talked about licensing many times, but we’re taking this one a little further. Watch to find out how! More…
TCPA consent – we’d hate to sound like a broken record, but here we are.
There’s a lot of commotion about validation notices in New Jersey right now.
Debt collectors have seen several cases questioning the language they use in validation notices. Specifically, inviting the consumer to call with any questions about their debt. According to consumers, the language is misleading. In Ferrulli v. BCA Financial Services, we find out what one court thinks about the potential fdcpa violations.