The Telephone Consumer Protection Act is front and center in the collections industry last month, following the ruling from the Ninth Circuit Court of Appeals in /Marks v. Crunch San Diego/.
The ruling, in essence, determined that an automated telephone dialing system is any equipment that “stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.” The ruling from the court overturned a lower court ruling and vastly expanded what defines an autodialer. For the ARM industry, there have been a ton of questions -- but few answers -- about what is allowed and not allowed following the ruling.
Any kind of remedy, be it a Supreme Court opinion (the Ninth Circuit's ruling created a split at the Appeals Court level about the definition of an autodialer, which is usually a pre-requisite for the Supreme Court to hear arguments in a case), or a new forthcoming rule from the Federal Communications Commission, is years off on the horizon. The ARM industry will be forced to deal with a convoluted compliance quilt for the foreseeable future.
When it comes to contacting individuals on their cell phones, the most important component of an effective and
compliant calling strategy is consent. If an agency has an individual's consent to contact that person on his or her
cell phone, then the agency has a lot less to worry about, as far as making sure it is complying with the TCPA. That consent should be requested, and hopefully obtained, every time an agency contacts an individual. Asking the consent question should be an embedded component of a script for any collection agency.
At a time when there are predictions that, by next year, 50% of all calls made to cell phones will be robocalls, the policies and procedures that collection agencies have in place to ensure compliance with all applicable laws and regulations, including the Telephone Consumer Protection Act, has never been more important. Plaintiff's lawyers are likely to seize on the Ninth Circuit's ruling and potentially file more lawsuits against collection agencies, accusing them of violating the TCPA. Documentation of consent, such as in the form of call recordings, are going to be essential for collection agencies to have to ensure they are complying with the law.