There are two camps forming among collection agencies: one is for those who simply do not call cell numbers, and the other is for those who do. If you are in the former, doing business has probably gotten tougher over the last several months as more and more consumers ditch landline phones – Unfortunately it is only going to get worse. No one disagrees that calling cell numbers is risky business, but it can be done if you set the proper workflow in motion. To assist you in your efforts to ensure calls to cell phones are not made using an autodialer, prerecorded message, or artificial voice without the consumer’s consent, you should first filter all telephone numbers received upon placement through a cell phone identification service. This process is called a cell phone scrub. It is not only a useful step in your TCPA compliance strategy, but a mandatory one.
You may have all the reps, warranties, and assurances conceivable in your Master Service Agreement to ensure your clients will identify cell numbers they send you in connection with their accounts. Your clients may also promise to never skip trace or buy data, and always obtain consumer consent to dial cell phones in writing. But none of these assurances is worth the weight of the lawyers who you will need to defend you if you find yourself as the defendant in a TCPA lawsuit. In fact, if there is one thing you can be sure of: these contractual assurances will almost guarantee your client will be a co-defendant in the lawsuit.
Some of the very best ways you can protect yourself from TCPA exposure is to follow four steps:
- Make sure you know if the number you plan to use to contact a consumer is a cell number. Conduct scrub number one against both cell phone “block” numbers and ported numbers.
- If you plan to contact that consumer using an autodialer, prerecorded message, or artificial voice, make sure you have that consumer’s consent. Remember, consent can only be granted by the party who subscribes to the cellular service or who customarily uses that cell phone/number.
- Make sure you are confident the particular cell number is still associated with that particular consumer at the time of autodialer pool build. Conduct scrub number two to determine cell ownership.
- If you lack any confidence in the consent associated with the number or the likelihood that number is associated with the consumer you believe granted consent, dial using a manual contact system.
In some respects, the cost of each scrub and the costs to maintain a manual contact system are expensive. However, this expense pales in comparison to the costs you will incur to defend a TCPA lawsuit or the damages that may be assessed if you are found to have violated the TCPA. Consider the recent settlement entered into by Portfolio Recovery Associates, LLC (PRA).
In this multidistrict class action spanning over four years, PRA agreed to pay $18 million to resolve the allegations it violated the TCPA by making autodialed phone calls to consumers without their consent. Settlement class members will receive a pro rata share of the balance of that amount after payment of notice and administration costs not to exceed $3,325,000, attorney’s fees not to exceed $5.4 million, litigation costs, and incentive awards for each of the named plaintiffs not to exceed $6,250 each.
To make it even more ugly, and according to the insideARM press release, PRA is enjoined from using its Avaya Proactive Contact Dialer to place calls to any person’s cellular telephone numbers without prior express consent and all natural persons residing in the U.S. who received one or more telephone calls from an autodialer or a predictive dialer operated by PRA to such person’s cellular telephone number between December 23, 2006, and July 1, 2013, inclusive are to be included in the class settlement. As we say in the great state of Minnesota, “uff da.”
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