Creditor Violations

Know Your Rights: The Telephone Consumer Protection Act (TCPA)

September 29, 2020 / by Michael McEldowney, J.D / 3 min read
The federal Telephone Consumer Protection Act (TCPA) was enacted in 1991. However, most consumers weren’t aware of the statute and its more limited purpose. The earliest impact of the TCPA most people remember is the creation of the federal “Do Not Call” list in 2003. The Do Not Call registry allowed consumers to opt out of unsolicited telemarketing calls. Many Americans were happy to take advantage of the opportunity to stop those annoying calls. But, today, the TCPA plays a much larger and more significant role in consumer protection. In 2012, the TCPA was expanded to prohibit telemarketers from “robocalling” consumers without prior permission. The Federal Communications Commission (FCC) determined that debt collection calls aren’t considered telemarketing calls. So, consumer permission isn’t needed to place automated calls and leave automated messages on the consumer’s wired phone--what we typically call a “landline.” But debt collectors do need permission to use autodialers and other automated systems to call consumer’s cell phones or send text messages. As of July, 2020, that includes collectors of government debt, such as delinquent student loans.

What is Considered Consent Under the TCPA?

While permission in the telemarketing context must be explicit, courts have been more lenient with debt collectors. Generally, a court will find that the consumer gave permission if he or she provided the mobile number to the creditor as a way to make contact regarding the account. So, “consent” can be as simple as having included the cell phone number on a credit card application or having provided it as a callback number when contacting the company. However, consent can generally be revoked. The FCC has ruled that any clear and reasonable means of revocation is sufficient. Of course, written revocation is easier to document, since the consumer can keep a copy of the revocation and the certified mail receipt or other proof of mailing.

TCPA Violations

Many consumers today don’t have wired phone lines at home, and rely entirely on their mobile phones. So, a cell phone number is often the only one a debt collector has. Since robo-calling is widespread in the credit and debt collection industries, that means a lot of consumers get automated collection calls to their cell phones. While consumers are often annoyed or stressed by these calls, most don’t know they may be TCPA violations. If more consumers knew their rights under the TCPA and took action, creditors and debt collectors might be forced to follow the law. But, since most consumers never push back, robocalling remains common--with or without consent. Generally, robocalls to a cell phone may violate the TCPA if:
  • The consumer never consented to receiving calls about the account
  • The calls are coming to a different number than the one the consumer provided, or
  • Consent has been revoked

Consequences of a TCPA Violation

The TCPA differs from many consumer protection statutes in an important way. Statutory damages--damages awarded because of the violation, even if the consumer can’t show harm--are per violation. That means a creditor or debt collector that violated the TCPA by making several robocall attempts each day could be on the hook for dozens or hundreds of violations. Every case is different, and there’s no guaranteed payout. But, collection agencies and creditors know damages can be unpredictable. With the risk uncertain, they may be more willing to settle these claims. And, TCPA violations may provide powerful leverage in negotiating to settle the underlying debt.

Put the TCPA to Work for You

The TCPA and other consumer financial protection statutes help consumers in many ways. They can help stop debt collector harassment and increase your negotiating power in debt collection cases. In some cases, you may even be entitled to money damages. Unfortunately, most consumers don’t know how to identify violations and turn those violations to their advantage. That’s why every DebtCleanse membership includes unlimited strategy sessions with an attorney. What are you waiting for? Take control of your debt right now.
Michael McEldowney, J.D

Michael is the Managing Attorney at Debt Cleanse Group Legal Services. He is passionate about helping everyday people. Michael has been dedicated to helping homeowners and consumers overcome bankruptcy and other debt for more than a decade. He is licensed to practice law in Illinois.


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