TCPA Consent Featured

Cases in Point: TCPA Consent Interpretation 2.0


TCPA consent – we’d hate to sound like a broken record, but here we are.

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Shulman vs. American Medical Collection Agency: Everything You Need to Know


A class-action lawsuit serves as a reminder that upholding a legitimate license is necessary.

The Plaintiff: Tatyana Shulman

The Defendant: American Medical Collection Agency
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Maddox v. CBE Group, Inc.: What You Need to Know


The recent outcome of a case solidifies what constitutes an ATDS while providing insight into a violation of the FDCPA.

The Plaintiff: Bria Maddox

The Defendant: CBE Group, Inc.
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Pavlovich vs. Account Discovery Systems, LLC: What You Need to Know


The recent outcome of a case coming out of the Southern District Court of California has provided insight into regulations surrounding the disclosure of interest loans.


The Plaintiff: Juan Pavlovich
The Defendants: DNF and Account Discovery Systems

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State of the TCPA

When the TCPA is as important as it is to the debt collection industry, it’s important to stay up to date on what’s going on with it.  I put together a quick write up on the State of the TCPA.

The first quarter of 2017 saw an increase in the number of TCPA lawsuits when compared to the first quarter of 2016.  The results of these lawsuits are also changing.  Defendants are winning TCPA cases with much more frequency than ever.  Here are three TCPA lawsuits from 2017 that were ruled in the defendants’ favor:

1. Duguid v. Facebook, Inc.

Noah Duguid was receiving text message “login notifications” regarding an account that was not his.  When he emailed Facebook about this matter, they sent him a generic email telling him to log into his account to resolve the issue.  When the text messages did not stop, Duguid filed a lawsuit against Facebook.

Duguid claimed the TCPA was violated by Facebook by using an autodialer or predictive dialer to send him text messages.  Duguid claimed that the software used by Facebook “had the capacity to store numbers and generate the text message without human interaction”.  He also argued that the messages were automated and only meant to seem as if they were personalized. The court found no evidence of this and ruled in the favor of Facebook saying they did not use an auto dialer software.

2. Zean v. Fairview Health Services

Samuel Zean had purchased medical supplies from Fairview Health Services. Zean was then receiving telemarketing and automated calls checking on if he needed new equipment for the machine he recently purchased. Zean asked that the calls be stopped. When they did not, he filed a lawsuit against Fairway.

Samuel Zean claimed that Fairview did not have consent to contact him. However,  Fairview presented to the court a document signed by Zean which in it,  stated that they had permission to contact clients regarding their purchases and accounts. This contact can be done on their cell phones, and even by way of an autodialer or predictive dialer. The court ruled that Zean had given prior consent and ruled in Fairview’s favor.

3. Reyes v. Lincoln Automotive

Alberto Reyes leased a new Lincoln MKZ from a local Lincoln dealer. In the Lease agreement, Reyes consented that Lincoln “may use written, electronic or verbal means to contact you” When Reyes stopped making his car payments, Lincoln began calling him on both his house phone and cell phone. Reyes claimed that he wrote a letter to Lincoln revoking his consent to be contacted. When the calls did not stop, he filed a TCPA suit against Lincoln.

Lincoln claimed that they did not receive any letter from Reyes. When asked by the court to produce the letter sent, Reyes supplied a letter that did not contain an address or a postmark date and referenced an incorrect account number. The court ruled that there is no evidence showing a letter was sent to Lincoln and “ that, in any event, the TCPA does not permit a party to a legally binding contract to unilaterally revoke bargained for consent to be contacted by telephone.”

 

For more information regarding TCPA compliance, check out our 5 Way’s to Avoid a TCPA Lawsuit

Want to make sure your company is staying TCPA compliant?

5 Tips to Call Compliance

Compliance is the holy grail of collection. In the collection business, you must always be sure your agents are staying compliant while making their calls. I sat down with Roger Morse, an Account Executive here at Arbeit to discuss compliance. Roger has dealt with compliance issues for years. While spending four years as the CCO of a company, Roger handled compliance training and ensured the company was compliant with all state and federal regulations.

During our discussion Roger told me that the great thing about using Arbeit Click is that the software allows you to set parameters to assure you are staying compliant. However, Roger tells me most compliance claims are from agents saying and doing the wrong thing. It is the responsibility of company management to ensure agents are staying compliant in what they say and do on the phones. If you are looking for some tips on how you can stay compliant, we’ve got you covered!  Roger offered his top 5 Tips to Compliance:

  1. Proper Hiring – Roger stressed that compliance is something that flows from the top down.  It starts with leadership having the ability to hire collectors that will be able to not only get the job done, but that can stay compliant while doing so.  Roger spoke of the importance for employers to hire collectors that have proper phone etiquette. This includes being able to annunciate, the ability to know when to quit talking and being able to know how and when to listen correctly.
  2. Training – Training is something that should be done from an agent’s first day on the job, to their last. As Roger put it, “The day you stop training and retraining, is the day you stop being compliant”.  Roger highlighted two areas where training should always be happening. They are training of the law and an agent’s tone and inflection.

    Training should continuously be done on laws such as TCPAFDCPA,  and the CFPB. Laws and regulations are always changing and it is imperative that agents are knowledgeable in these areas in order to stay compliant with them.When it comes to Tone and Inflection, it is important that you as supervisors train your agents on how they should be relaying their message.  When it comes to the importance of tone and inflection, Roger told me, “It’s not what you say, but how you say it”. Agents must be trained on the proper way your message should be relayed.
  3. Listening Skills – Having strong listening skills is one of the most important things an agent can have. Roger emphasized the importance of being a good listener when he told me “God gives you one mouth to talk less and two ears to listen more”. As a manager, you must assist agents in developing their listening skills so they can more easily relate to and understand consumers. Most complaints happen when there are misunderstandings, and when you are able to listen well, agents can cut down on misunderstandings.As your agents develop their listening skills, so too do they develop the ability to overcome an objection. Roger discussed that in his experience if an agent can listen to and understand a consumer’s concerns, they are more easily able to work with them to find a solution to the situation.
  4. Kill Them With Kindness – “You’ll get more bees with honey than you do with vinegar”. Showing empathy is very important for your agents. As Roger discussed with me, most people do not choose to be in the situation they are in, your agents must be able to “kill them with kindness” and relate to them. People file complaints when they are angry, so make sure your agents are smiling. Although it may seem crazy, you can hear a smile, and it can go a long way in someone’s day.
  5. Role Play – As managers, you should always wonder how your agents are on the phone. Role playing allows you to experience this while also testing them. You should test your agents frequently to assure they are up to the standard of you and your company. By doing this you can review their performance and be sure they are staying compliant.

 

So there ya go, Roger normally charges $800 for a course like this, but we are giving it to you for free. So do us the favor and check out our Arbeit Dialer and our TCPA compliant manual dialing solution Arbeit Click.

5 Ways to Avoid a TCPA Lawsuit

TCPA compliance has become the hot topic in the dialer world, but why? It’s because companies are being sued for violating the TCPA more frequently now than ever before. In 2016 alone there were 4,860 TCPA lawsuits filed in the United States, which was a 31.8% increase from the number of TCPA lawsuits in 2015.

It was amazing to see how much money these lawsuits were being settled for.  The largest settlement ever for a TCPA claim was in the case of Birchmeier v Caribbean Cruise Line, inc. in which Caribbean Cruise Line settled for $76 million dollars in late 2016.  Other major TCPA settlements that I found include: Capital One for $75 million, HSCB for $40 million, Sirius XM radio for $35 million, Wells Fargo for $16.3 million, and American Express for $8.25 million.

After seeing the millions of dollars companies spend on TCPA lawsuits, I did some research to find out what indicators were used to determine if a company was using an auto dialer. Below is my list of 5 Ways to Avoid a TCPA Lawsuit:

  1. 3 Second Pause – The 3 second pause is the biggest sign of an auto dialer  In Richard v Verde Energy, the judge ruled that a “momentary pause” was “sufficient to draw a reasonable inference that the defendant used an auto dialer”.
  2. Text to Speech Messages – To lawyers, and more importantly judges, full text to speech and agentless messages are a sure sign that a company is using a voice broadcasting dialer. Full text to speech messages are very noticeable on the call and make it very easy for a plaintiff to file a suit against you.  In the lawsuit of Turk v Guardian Protection Services (GPS) the judge stated that GPS was in violation of the TCPA for using “full agentless’ recorded messages”.
  3. Human Interaction –  The TCPA is violated when a company is “using equipment having the capacity to dial numbers without human interaction”.  In Benzion and Glaser v Vivint Inc, Vivint Inc was said to violate TCPA when they used a software that was making calls using a voice broadcasting dialer that has no need for a human to even be in the room when the calls were being made.
  4. Disobeying Consumers Wishes – Companies often find themselves in a situation where they are told to stop calling consumers, well take my advice, Stop calling! Lawsuits are not often filed after one call, many take tens of calls before someone files a lawsuit. For example, in the case of King v Time Warner Cable, the lawsuit was brought against TWC after King had claimed Time Warner had been asked to stop calling and they did not.
  5. Repeated Messages – The last on my list of 5 Ways to Avoid a TCPA Lawsuit are not having repeated messages in both style and content.  In Anozie v Papa John’s International, Inc.  Papa John’s was found leaving the plaintiff multiple messages that were the exact same in both style and content.  This was a clear sign that they were using a predictive dialer.

 

Is there one easy way to avoid a TCPA lawsuit?  Absolutely!  Just pick up the phone and call us at Arbeit Software to learn about Arbeit Click.  Our TCPA Manual dialing solution, that mimics a predictive dialer but doesn’t get you sued like one.   Eliminate your concern of being hit by a TCPA claim.  With our software, you can just focus on making millions as opposed to spending millions on TCPA lawsuits.

For other compliance tips check out our blog post “Can I Use a Broadcast Dialer and Still be TCPA Compliant?

5 Way’s to Avoid a TCPA Lawsuit

TCPA compliance has become the hot topic in the dialer world, but why? It’s because companies are being sued for violating the TCPA more frequently now than ever before. In 2016 alone there were 4,860 TCPA lawsuits filed in the United States, which was a 31.8% increase from the number of TCPA lawsuits in 2015.

 

It was amazing to see how much money these lawsuits were being settled for.  The largest settlement ever for a TCPA claim was in the case of Birchmeier v Caribbean Cruise Line, inc. in which Caribbean Cruise Line settled for $76 million dollars in late 2016.  Other major TCPA settlements that I found include: Capital One for $75 million, HSCB for $40 million, Sirius XM radio for $35 million, Wells Fargo for $16.3 million, and American Express for $8.25 million.

 

After seeing the millions of dollars companies spend on TCPA lawsuits, I did some research to find out what indicators were used to determine if a company was using an auto dialer. Below is my list of 5 Ways to Avoid a TCPA Lawsuit:

 

  1. 3 Second Pause – The 3 second pause is the biggest sign of an auto dialer  In Richard v Verde Energy, the judge ruled that a “momentary pause” was “sufficient to draw a reasonable inference that the defendant used an auto dialer”.
  2. Text to Speech Messages – To lawyers, and more importantly judges, full text to speech and agentless messages are a sure sign that a company is using a voice broadcasting dialer. Full text to speech messages are very noticeable on the call and make it very easy for a plaintiff to file a suit against you.  In the lawsuit of Turk v Guardian Protection Services (GPS) the judge stated that GPS was in violation of the TCPA for using “full agentless’ recorded messages”.
  3. Human Interaction –  The TCPA is violated when a company is “using equipment having the capacity to dial numbers without human interaction”.  In Benzion and Glaser v Vivint Inc, Vivint Inc was said to violate TCPA when they used a software that was making calls using a voice broadcasting dialer that has no need for a human to even be in the room when the calls were being made.
  4. Disobeying Consumers Wishes – Companies often find themselves in a situation where they are told to stop calling consumers, well take my advice, Stop calling! Lawsuits are not often filed after one call, many take tens of calls before someone files a lawsuit. For example, in the case of King v Time Warner Cable, the lawsuit was brought against TWC after King had claimed Time Warner had been asked to stop calling and they did not.
  5. Repeated Messages – The last on my list of 5 Ways to Avoid a TCPA Lawsuit are not having  repeated messages in both style and content.  In Anozie v Papa John’s International, Inc.  Papa John’s was found leaving the plaintiff multiple messages that were the exact same in both style and content.  This was a clear sign that they were using a predictive dialer.

 

Is there one easy way to avoid a TCPA lawsuit?  Absolutely!  Just pick up the phone and call us at Arbeit Software to learn about Arbeit Click.  Our TCPA Manual dialing solution, that mimics a predictive dialer but doesn’t get you sued like one.   Eliminate your concern of being hit by a TCPA claim.  With our software, you can just focus on making millions as opposed to spending millions on TCPA lawsuits.

For other compliance tips see Alex’s TCPA blog.

Can I Use a Broadcast Dialer and Still be TCPA Compliant?

Okay, okay of course you’re worried about TCPA compliance. I want to make it clear however, a dialer is still legal to use under MANY circumstances.

If you are using just a manual dial or predictive dialer solution, you are doing it wrong! You wouldn’t drive 35 MPH in a 55 just because the speed limit is 35 somewhere? Right? Did I lose you? No? Ok good.

Now I AM NOT saying manual dial or predictive dialers are bad, they serve a purpose and are still useful. BUT, you also need to run an unattended broadcast dialer!

First, sort out the cell phones you don’t have permission to call. Then, put those on a manual click-to-call solution like Arbeit Click (not a dialer, so you’re good). Take the remaining numbers, load them into Arbeit Dialer and press play. Simple as that. Now your agents can be on Arbeit Click calling cell phones without violating TCPA compliance guidelines and you can be running a completely unattended dialer, on a completely separate system generating tons of incoming calls for your collectors.

Don’t lose productivity because of silly outdated laws! You can still follow the law, just be a little creative—your office won’t miss a beat.

The innovative nerds at Arbeit Software have built the better dialer. Take it for a free test run today and see how easy it is to make more connections—with less downtime.