Get consent to contact your customers cellular phone

Get consent to contact your customers cellular phone.              

Last month I spoke about using technology to be more effective in your efforts to communicate with your customers. This month I will be continuing this discussion to advise you to get consent from your customers to contact them on their cellular phone. Another recent court case really highlights the need to change our current operating practices, and to include authorization in your registration forms that clearly states that you and your business partners are authorized to contact the customer on their cellular phone.

The case that is starting to turn some heads in the business world is an award to a plaintiff in the amount of $571,000.00 in statutory damages for violations of the Telephone Consumer Protection Act (TCPA).

$571,000.00 !!!!!

The TCPA applies to calls made from an automatic telephone dialing system (ATDS).   An ATDS is defined as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” A smart phone could qualify for such a device.

In this case, a Federal Court in Wisconsin held that a debt buyer called the Plaintiff on a mobile phone more than 1000 times.  The Defendant raised several defenses, including the defense that some of the calls were made in dialer preview mode.  The Court determined:

“In making these calls, defendant used . . . a computer telephone software system that routes and places inbound and outbound calls. [The software system] has the capacity to (1) store telephone numbers and then call them; and (2) perform ‘predictive dialing’ and ‘preview dialing.’”

In predictive dialing, the system times the dialing of numbers using an algorithm to predict when an agent will become available to receive the next call. To facilitate that method of dialing, defendant created lists of customer telephone numbers to be called on a particular day. In preview dialing, an employee chooses a telephone number by clicking on a computer screen and the system calls it. Defendant’s employees never called plaintiff by pressing numbers on a keypad. (emphasis added).

The Court held that because the calls to the Plaintiff were made through the dialer – and despite the human intervention of the individual collector choosing a telephone number and clicking on a screen to prompt the dialer – the Defendant violated the TCPA.  The Court wrote:

Regardless whether preview dialing falls outside the scope of § 227(a)(1) and the FCC’s order, I agree with plaintiff that defendant’s argument is another red herring. Under both the statute and the order, the question is not how the defendant made a particular call, but whether the system it used had the “capacity” to make automated calls. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009) (“[A] system need not actually store, produce, or call randomly or sequentially generated numbers, it need only have the capacity to do it.”) (emphasis added). This case information was provided by InsideArm.

From this interpretation, and the case covered last month where the actual creditor is being sued for TCPA violations because of their collection agency used an automated dialing system,  if your collection agency uses this technology you could get sued, and possibly lose or have to settle to protect your business. Professional Recovery Personnel does not use any type of automatic telephone dialing system (ATDS).  Our agents dial every number manually thus eliminating any potential liabilities in regards to the TCPA. However, it is a very good idea to add this consent into your current registration forms or terms and conditions.

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