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The TCPA on the Fringe: The HOT issues, the FCC petitions, dialers, and predicting the future”

August 28, 2014

Presented by David J. Kaminski

http://www.dnc.com/

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Legal Disclaimer

Any content included in this presentation or discussed during this session (“Content”) is presented for educational and general reference purposes only. Contact Center Compliance, either directly or indirectly through speakers, independent contractors, employees or members of Contact Center Compliance (collectively referred to as “Contact Center Compliance”) provides the Content as a courtesy to be used for informational purposes only. The Contents are not intended to serve as legal or other advice. Contact Center Compliance does not represent or warrant that the Content is accurate, complete or current for any specific or particular purpose or application.

This information is not intended to be a full and exhaustive explanation of the law in any area, nor should it be used to replace the advice of your own legal counsel. Contact Center Compliance is the sole owner of the Contents and all the associated copyrights. Contact Center Compliance hereby grants a limited license to the Contents solely in accordance with the copyright policy provided at www.acainternational.org. By using the Contents in any way, whether or not authorized, the user assumes all risk and hereby releases Contact Center Compliance from any liability associated with the Content.

The views and opinions of the speakers expressed herein are solely those of the presenters and not Contact Center Compliance.

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David Kaminski, Carlson & Messer LLP

David Kaminski is a Partner at the law firm of Carlson & Messer LLP, a defense firm which focuses its practice in creditor’s rights and financial services litigation. For the past 15 years, he has been a tireless advocate for the banking, credit, and collection agency industries in claims brought under the FDCPA, the FCRA, the TCPA, and related state and federal consumer protection statutes. He is a recognized authority and speaker on such topics.

David also serves as outside compliance counsel to banks and collection agencies and has developed policies, procedures, and compliance/training programs to minimize their risks of liability. He has successfully represented clients in courts throughout the United States and has extensive experience in multi-district (“MDL”) and class action litigation. He regularly defends clients in investigations and proceedings initiated by the CFPB, FTC, FCC, and other federal and state government and regulatory agencies.

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Cont’d.

• David was appointed the 2013-2014 Chair of the Member Attorney Panel (“MAP”) division of the ACA International. He was appointed to the ACA Regulatory Committee and was elected to the ACA Attorney Panel Council of Delegates for the past two years. David has been rated “Preeminent” by his peers on Martindale-Hubbell, the worldwide guide to lawyers.

• David has published numerous articles on compliance and the evolving interpretations of consumer protection laws. He has lectured on a myriad of consumer topics throughout the U.S. and has been invited to speak for the ACA International, the National Association of Retail Collection Attorneys, the California Association of Collectors and its chapters, among other trade organizations.

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• Enacted in 1991; Pub. L. No. 102-243, 105 Stat. 2394, December 20, 1992 codified at 47 U.S.C. 227

• Intended for actions to be brought in small claims courts. See Local Baking Prods. v. Kosher Bagel Munch, Inc., 2011 N.J. Super. LEXIS 143 (App.Div. July 19, 2011).

• Legislative intent was to curb telemarketing and avoid transferring costs to consumers.

• Other industries fell into purview of TCPA by virtue of dialer technology being used.

Telephone Consumer Protection Act of 1991

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The TCPA prohibits the use of automatic telephone dialing systems and prerecorded messages to call wireless devices:

The “Autodialer” Ban:

§ 227(b) Restrictions on use of automated telephone equipment

(1) Prohibitions: It shall be unlawful for any person within the United States or any person outside the United States if the recipient is within the United States –

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice - …

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. (Emphasis added)

TCPA 1991 – Wireless Autodialer Ban

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§ 227(b) - Restrictions on use of automated telephone equipment

(1) Prohibitions - It shall be unlawful for any person within the United States or any person outside the United

States if the recipient is within the United States -

. . . (B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B) (Emphasis added).

TCPA 1991 – Landline Restrictions

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Provisions Governing Residential Calls

Residential phones:

• No consent required for debt collection calls made to residential landlines because they are considered exempt.

• Exemption for commercial calls that do not include or introduce an advertisement or constitute telemarketing (47 C.F.R. § 64.1200(a)(3)(iii)) (See 1992 FCC Order, par. 39).

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• TCPA provides for monetary damages:

– Damages for standard violation - $500 per violation (42 U.S.C § 227(b)(3)(B)) or actual damages, whichever is greater.

– Damages for willful or knowing violation – the damages are up to 3 times the award for a standard violation (47 U.S.C § 227(b)(3)).

– The TCPA does not provide for recovery of attorney’s fees. (But, CAVEAT re TCPA class actions).

TCPA Damages

• ACA Files October 2005 Petition “Requesting” FCC to exempt debt collection industry from TCPA.

• FCC Declaratory Ruling - Released January 4, 2008 – FCC clarifies prior express consent to creditor and debt collector: – “In this ruling, we clarify that autodialed and pre-recorded message

calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ‘prior express consent’ of the called party.” Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.” (FCC 2008 Ruling, pars. 1 and 10)

• Consent must be provided to the Creditor (for FCC pass through consent to apply).– FCC says consent ruling should be construed “narrowly” – FCC

Amicus Brief, June 30, 2014, Nigro v. Mercantile Adjustment Bureau, 13-1362 (2nd Cir.)

FCC 2008 Declaratory RulingPrior Express Consent

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Timing of “deemed” Consent:

• FCC Ruling says consent is “deemed” provided only if given by debtor to creditor during the transaction that resulted in the debt owed” (FCC Ruling, Par. 10);

• FCC also says: Consent is proper if wireless number was provided by subscriber “in connection with” existing debt (FCC 2008 Ruling); But in Nigro v. Mercantile Adjustment Bureau, LLC, No. 13-1362 (2d Cir.), on June 30, 2014 the FCC filed an amicus brief urging that the time horizon for consent under the 2008 FCC ruling to be provided should be limited to “during the transaction that resulted in the debt owed.”

• 9th Meyer v. Portfolio: “Pursuant to the FCC 2008 ruling, PEC is consent to call in connection with a particular debt that is given before the call in question is placed.” See also Taylor v. Universal Auto Grp. I, Inc., C 13-5245 KLS, 2014 WL 2987395 (W.D. Wash. July 1, 2014) (same).

FCC 2008 Declaratory Ruling Prior Express Consent

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Consent Rules for Debt Collection Calls

• Consent is creditor-specific. Consent provided to a particular creditor does not entitle creditor to call on behalf of other creditors, including on behalf of affiliated entities. (Nt. 38, FCC 2008).

• Consent is also debt-specific. Debt collectors may not use mobile numbers voluntarily provided in connection with one debt to fulfill consent requirements for another debt, even if the debts involve the same creditor. SPLITTING HAIRS

• See also Kolinek v. Walgreen Co., 13 C 4806, 2014 WL 3056813 (N.D. Ill. July 7, 2014) (holding “. . . the scope of a consumer's consent depends on its context and the purpose for which it is given. Consent for one purpose does not equate to consent for all purposes.”)

• Can consent be given directly to debt collector? Yes! Orally or in writing.

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Prior Express Consent:

– Can be verbal or in writing. (Note: The TCPA did not specify how consent must be obtained – Clarified by FCC in 2/15/12/ Report and Order).

– See, e.g., Greene v. DirecTV, Inc., 2010 U.S. Dist. LEXIS 118270 (N.D. Ill. Nov. 8, 2010) (providing cell number to credit bureau is fraud alert).

– Via website - Roberts v. PayPal, Inc., 2013 U.S. Dist. LEXIS 76319 (N.D. Cal. May 30, 2013) (cell phone number on website).

– Smith v. Progressive Fin. Servs., 2013 U.S. Dist. LEXIS 108744 (D. Or. Aug. 1, 2013) (placing number on loan application).

– Can be assigned - Moriarity v. Nationstar Mortgage, LLC, 2014 U.S. Dist. LEXIS 26169 (E.D. Cal. Feb. 27, 2014) (consent travels with valid assignment of debt).

– Must be provided by the Consumer – (spouse)?

FCC 2008 Declaratory RulingPrior Express Consent – What is Consent?

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– Phone number capture through Caller ID (ANI). Castro v. Green Tree Servicing LLC, 2013 U.S. Dist. LEXIS 115089 (S.D.N.Y. Aug. 14, 2013).

– Express request not to call cell number (verbal or written revocation ok per TCPA and FCC 2008 Order, and per Gager 3rd Circuit Appellate decision).

– Skip tracing dangerous – see Meyer v. Portfolio 2012 U.S. App. LEXIS 21136 (9th Cir. Cal. Oct. 12, 2012) - can give rise to potential class action.

Caveat: What if skip trace number matches with data already in phone database?

What is Not “Consent”?

The Following Are Not “Prior Express Consent”:

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Consent Rules for Debt Collection Calls

Does simply confirming a phone number with a debtor constitute “express” consent without language re: autodial and prerecorded messages?

• Both the FCC and various federal courts have deemed knowingly release of cell phone number to a creditor or a debt collection agency . . . Is prior express consent under the TCPA.” Levy v. Receivables Performance Mgmt., LLC, 972 F. Supp. 2d 409, 412 (E.D.N.Y. 2013).

• See Murphy v. DCI Biologicals Orlando, LLC, 2013 WL6865772 (M.D. Fla. 12/31/13) – providing number voluntarily is express consent to be called via autodial equipment and prerecorded messages because FCC 2008 Order defines “express consent” in context of TCPA which speaks to autodialed calls.

• Opposite View - “Missing from this case are any facts . . . that verification of her phone number was tantamount to giving permission to being robocalled about a purported debt — this is in marked contrast to the 2008 FCC ruling and the creditor debtor cases . . .” Thrasher-Lyon v. CCS Commercial, LLC, 11 C 04473, 2012 WL 3835089 (N.D. Ill. Sept. 4, 2012).

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Who is Responsible to Prove Consent?

• Creditor is responsible for demonstrating that debtor provided prior express consent

• Creditors should keep records in the normal course of business, such as purchase agreements, sales slips, and credit applications (FCC 2008 Ruling)

• If question arises as to whether express consent has been provided, burden is likely on the creditor to show that it obtained the necessary prior express consent.

• Creditor on whose behalf the autodialed or prerecorded message call is made bears the responsibility for any violation. (FCC 2008 Ruling, par. 10)

• Calls placed by third party collector on behalf of a creditor are treated as if the creditor itself placed the call.

• Caution: a third party collector liable for a violation (FCC 2008 Ruling, par. 10)

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Consent Rules for Debt Collection Calls

Common Authority Over Phone – Spouses, etc.• Gutierrez v. Barclays Group, 2011 U.S. Dist. LEXIS 12546,

8-9 (S.D. Cal. Feb. 9, 2011)(spouse held to have "common authority" over debtor’s cellular telephone - gives Defendant consent - only after deposition-costly.

• 11th Circuit- Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1252 (11th Cir. 2014) (whether spouse or partner have common authority to give consent = issue of fact.)

• CRUX – get consent ONLY from debtor/consumer

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Consent Rules for Debt Collection Calls

Medical Debt Consent and Challenge to FCC 2008 Consent Ruling

– Mais v. Gulf Coast Collection Bureau, 2013 U.S. Dist. LEXIS 65603 (D. Fla. 2013)(11th Circuit Accepts Interlocutory Appeal on 4 issues).

• Court invalidates FCC’s 2008 Ruling - Says contrary to TCPA - FCC Consent is “implied consent” not “express consent.” Congress’ language in TCPA controls.

• FCC’s consent ruling limited to creditor-debtor collector circumstance, not to transactions involving the provision of medical care (court cites FCC 2008, par. 10).

• Even if FCC ruling applies to medical debt, hospital was not the entity for whom debt collector was collecting debt. (Similar to Boise – See next pg.)

• For FCC ruling to apply, cell phone number had to be provided by debtor to creditor “during transaction that resulted in the debt owed.” (Conflicts with 9th Circuit Meyer).

— (But, See Mitchem v. Ill. Collection Serv., 2012 U.S. Dist. LEXIS 126017 (N.D. Ill. Jan. 20,

2012); Murphy v. DCI Biologicals Orlando, LLC, 2013 WL6865772 (M.D. Fla. 12/31/13) FCC final orders are binding – providing cell phone to health care provider constitutes prior express consent; Hudson v. Sharp Healthcare, 2014 WL 2892290 (S.D. Cal. June 25, 2014); Chavez v. The Advantage Group, 2013 U.S. Dist. Ct. LEXIS 110522 (APRIL 5, 2013)

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Methods to Obtain Consent

• Telephone• Make it part of the call protocol for

collection calls• Customer service calls

• Email• Replies to email – CAREFUL – Statutory

Disclosures• Redirect consumers to company-controlled

website to capture consent• U.S. Mail

• Postcards• Account statements with cell phone number

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Methods to Obtain Consent - Work with Creditor Clients

— (Good Sample – Terms and Conditions of Customer Agreement)

Notices and customer communications - you expressly consent to be contacted, by ______ or anyone calling on its behalf, for any and all purposes, at any telephone number, or physical or electronic address you provide or which you may be reached, including any wireless telephone number. You agree that the above persons and/or entities may contact you in any way, including calls or prerecorded or artificial voice or text messages delivered by an automatic telephone dialing system, or email messages delivered by an automatic emailing system.

Crux-You expressly acknowledge that this consent cannot be revoked without prior written agreement and acceptance by us. Alt. - You agree to promptly notify us at any time your contact information changes.

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Examples of Consent

Telephone Script

Ask consumer to confirm mobile number or ask debtor to allow adding mobile number to account. We would like permission to contact you about your account on your mobile phone including sending text messages. Do we have your consent? Please say “yes” or “no.”

• Must maintain records of these voice recordings.• Must disclose to consumer that you are recording the conversation before you record

it (do at outset of call as standard operating procedure) – Use incoming call recording warning – can’t be by-passed.

• Sample: a) Do we have consent to call you at this number for any and all purposes? –

Invites dialog?b) Do we have consent to call you at this number for any and all accounts?c) By providing your phone number, you agree that we may contact you on your

accounts for servicing purposes.

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Revocation of Consent

Revocation – 3rd and 11th Circuits Appeals Courts Hold Revocation of Consent Can be Made Orally at Any Time

– The 3rd Circuit in Gager v. Dell Fin. Servs., LLC, 2013 U.S. App. LEXIS 17579 (3d Cir. Pa. Aug. 22, 2013), held:

• (1) the TCPA affords Gager the right to revoke her prior express consent to be contacted on her cellular phone orally or in writing. (See also, Osorio v. State Farm, 2014 U.S. App. LEXIS 5709 (Eleventh Cir. March 28, 2014);

• (2) there is no time limitation on that right.

• Important - Court held that ”in the absence of any contractual restriction to the contrary” plaintiffs were free to orally revoke any consent previously given to State Farm.

– Martin v. Comcast Corp., 2013 U.S. Dist. LEXIS 169221 (N.D. Ill. Nov. 26, 2013) (raises issue of what is a reasonable time to process revocation of consent)

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Recordkeeping

• Maintain consent records for at least 4 years (statute of limitations for TCPA cases is 4 years under 28 U.S.C. § 1658)

• Carefully document the date and substance of any changes, such as changes to any application forms or any opt-in processes

• Maintain organized and detailed records so you can easily access, search, and retrieve consent data – Can Defeat Classo Includes electronic records such as text messages, emails,

voice recordings, telephone keypress, or web registrations

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‒ IMPORTANT – 7th and 11th Circuits Weigh-In

• Soppet v. Enhanced Recovery Co., LLC, 2012 U.S. App. LEXIS 9560 (7th Cir. Ill. May 11, 2012)

• Collector called cell number provided by customer - number reassigned to new consumer. Seventh Circuit rejected “intended recipient” theory.»Holding: “We conclude that “called party” in§227(b)(1) means the

person “subscribing” to the called number at the time the call is made.”

- Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1251 (11th Cir.2014): Following Soppet – “called party” means cell phone “subscriber”.

TCPA Standing for Calls to Cell Phones“Called Party” Defined

Automatic Telephone Dialing System defined by 47 USC 227(a)(1): “ATDS”

• (a) DEFINITIONS —As used in this section— (1) The term “automatic telephone dialing system” means equipment which has the

capacity— (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.

• 47 CFR § 64.1200(f) (FCC Regulations) employs the same definition of ATDS as in the TCPA.

• FCC Jan 2008 Declaratory Ruling - Predictive dialer “constitutes” an ATDS under TCPA (par. 12).• Key point per FCC – “the capacity to dial numbers without human intervention” (FCC 2008

Ruling, Par. 13).

• FCC contradicts itself: – “Debt collection calls . . . are not autodialer calls” (i.e., dialed using a random or

sequential number generator) (par. 5 FCC 2008).

Automatic Telephone Dialing Systems& Predictive Dialers

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Ninth Circuit Court of Appeals - Satterfield v. Simon & Schuster, 569 F.3d. 946 (9th Cir. 2009) 9th Circuit says no need for FCC to interpret what is an ATDS since statute - (227(a)(1)) clear and unambiguous on its face.

• A text message is a “call” under TCPA; “Call” defined – To communicate with or try to get in communication with a person by telephone.

But see 9th Circuit Meyer v. Portfolio 2012 - ATDS –Meyer Court cites Satterfield for definition of an ATDS, but then cites FCC’s 2008 Ruling re: predictive dialer: Defendant’s dialers is an FCC ATDS.;

Automatic Telephone Dialing Systems& Predictive Dialers

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OTHER CASES: Griffith v. Consumer Portfolio Serv., 2011 U.S. Dist. LEXIS 91231 (N.D. Ill. Aug. 16, 2011)(follows 2003 and 2008 rulings - definition of ATDS includes devices with “capacity” to dial without human intervention);

Compare Sherman v. Yahoo! Inc., 2014 U.S. Dist. LEXIS 13286 (S.D. Cal. Feb. 3, 2014)(citing both FCC and Satterfield, then relies on Satterfield - HOLDS: Focus on whether equipment has capacity to “both store numbers and dial random and sequential numbers”.

FOCUS ON CAPACITY - Bates v. Dollar Loan Ctr., LLC, 2014 U.S. Dist. LEXIS 1551 (D. Nev. Jan. 7, 2014)(Deny MSJ – No Evidence that system used to manually dial lacks “capacities” under TCPA”); Compare Jackson v. Calvary, 4:13-cv-00617-CEJ (E.D. Mo. Feb. 7, 2014) (granting MSJ where affidavit stated call was dialed manually – Plaintiff did NOT argue “capacity”)

Automatic Telephone Dialing Systems& Predictive Dialers

ClaClass Action Settlements

Date Filed Case Name Settlement Status Potential Class size

Total Amount Allocated

Attorneys’ Fee/Cost Allocation

Per Member Recovery If All Claim

April 3, 2012

(W.D. Wa)

Arthur v. Sallie Mae

Final Approval Granted 9/17/12

7,792,256 $24,150,000 $4.83M $3.10

Sept. 27, 2013

(N.D. Cal.)

Rose v. Bank of America

Motion for Final Approval filed on 2/19/14

6,261,588 $32,083,905 $8,020,976 $3.10

March 12, 2012

(N.D. Ill.)

Griffith/Cain v. Consumer Portfolio

Final Approval Granted 6/15/12

4,035 $1.1M $363,000 $272.61

March 12, 2012

(S.D. Cal)

Connor v. JP Morgan Chase

Preliminary approval granted May 30, 2014

Aprpox. 1.5 M (Group 2 added on May 30, 2014)

Cap at $11,268,058

$2.95 M $3.1

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ClaClass Action Settlements

Date Filed Case Name Settlement Status Potential Class size

Total Amount Allocated

Attorneys’ Fee/Cost Allocation

Per Member Recovery If All Claim

March 7, 2014

(S.D. Cal.)

Aboudi v. T-Mobile

Motion for Preliminary Class Approval Withdrawn, subject to Refiling 6/14/14

106,157 $5,000,000 Not to exceed $1,000, 000

$47.10

June 9, 2014

(W.D. Wash.)

Best Buy v. Chesbro

Motion for final approval filed 6/9/2014

42,000 TCPA class

439,000 Washington Class

$4.550,000

$3,125,000 (net settlement fund)

$1,137,500 $6.68

May 22, 2013

(C.D. Cal.)

Vandervort v. Balboa

Final Approval Granted 3/24/14

76,000 $3.3 million ceiling

2.3 million floor

$1,100,000 $43.42

May 22, 2013

(S.D. Cal.)

Malta v. Wells Fargo

Final Approval granted 6/21/13

5,887,508 $17,100,000 $3,866,119.37 <$2.24

120,547 actual claimants awarded $8.42

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“Evidence of consent” to defeat class cert. is key:

• Stern v. DoCircle, Inc., 2014 U.S. Dist. LEXIS 17949 (C.D. Cal. Jan. 29, 2014) (certifying TCPA class - defendant had no evidence of consent for class members—generalized policy consent not sufficient);

• Lemieux v. Schwan's Home Serv., 2013 U.S. Dist. LEXIS 127032 (S.D. Cal. Sept. 5, 2013)(defense “implied consent” theory for all class members not sufficient);

• Jamison v. First Credit Servs., 2013 U.S. Dist. LEXIS 105352 (N.D. Ill. July 29, 2013) (Honda had substantial evidence of consent - denied class certification based on indv. inquiries) Important – Court: Don’t say – consent is indv. inquiry - bring “evidence” of consent;

• Donaca v. Dish Network, LLC, 2014 U.S. Dist. LEXIS 19740, 26-27 (D. Colo. Feb. 18, 2014)(Denied Class Cert. -defendant provided proof of consent for majority of class);

• Chapman v. First Index, Inc., 2014 U.S. Dist. LEXIS 27556, 9-10 (N.D. Ill. Mar. 4, 2014) defendant submitted uncontroverted evidence of consent prior to sending faxes.

Impact of Evidence of Consent

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• Other defenses to TCPA Class Actions – Settlement or Rule 68 Offer to Lead Plaintiff • Seventh Circuit Court of Appeals disagrees with four other circuits (3rd, 5th, 9th, and 10th):

settlement offer of complete relief to named plaintiff if made before motion for class certification filed moots claims and requires dismissal. Damasco v. Clearwire Corp., 662 F.3d 891 (7th Cir. Ill. 2011).

• To avoid mootness - The Seventh Circuit suggests: file class cert. motion at the time complaint filed.

• Some courts disfavor “placeholder” motions to certify that are filed early per Damasco. See, e.g., Physicians Healthsource Inc. v. Purdue Pharma LP, No. 3:12-cv-1208 (D. Conn. Sept. 8, 2013). Holding such motion as “hasty” and “under-developed.”

• Other defenses to TCPA Class Actions – Suit against person that provided number (if not the plaintiff)

• Webb v. Healthcare Revenue Recovery Grp., LLC, 13-CV-00737-JD, 2014 WL 2967559 (N.D. Cal. July 1, 2014) (permitting defendant’s third-party complaint for equitable indemnification and negligent misrepresentation against adult son of plaintiff, alleging the son provided the number.)

Other TCPA Class Action Strategies – Rule 68

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• Other defenses to TCPA Class Actions – Arbitration Clause

• Whaley v. T-Mobile, USA, Inc., 2013 U.S. Dist. LEXIS 130650 (E.D. Ky. Aug. 23, 2013) – NOT A CLASS ACTION CASE

• Plaintiff entered into arbitration clause on his own T-Mobile account.

• T-Mobile made calls to Plaintiff attempting to reach other T-Mobile consumer.

• Court held that arbitration clause was broad: “ANY AND ALL CLAIMS OR DISPUTES IN ANY WAY RELATED TO OR CONCERNING THE AGREEMENT, OUR SERVICES, DEVICES OR PRODUCTS, INCLUDING ANY BILLING DISPUTES”.04/13/2023 08:17 AM 33

Petitions to the FCC

ACA’s Petition for Rulemaking:

Issues raised: ATDS (capacity), Consent, Wrong Party, Safe harbor.

(1) clarify that all predictive dialers are not automatic telephone dialing systems – must meet statutory definition;

(2) confirm that “capacity” means present ability, without modification, at time the call is placed;

(3) prior express consent should attach to person incurring debt, not number provided by debtor;

(4) the furnishing of a safe harbor for “wrong number” non-telemarketing calls. (Note: United Healthcare Petition – says “called party” is “unintended recipient”, not subscriber);

Automatic Telephone Dialing Systems& Predictive Dialers

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Class Action Strategies – Motion for Stay

Doctrine of Primary Jurisdiction

• The doctrine of Primary Jurisdiction is applicable to claims, “ ... that contain some issue within the special competence of an administrative agency.” Verizon New England, Inc. v. Maine Pub. Utilities Comm'n, 509 F.3d 1, 12 (1st Cir. 2007).

• When agency has primary jurisdiction, court has discretion to stay case, or, if no prejudice, to dismiss without prejudice. Rymes Heating Oils, Inc. v. Springfield Terminal R. Co., 358 F.3d 82, 91 (1st Cir. 2004).

• Various petitions to the FCC raise FCC “primary jurisdiction” on following grounds;

Petitions Relating to Present Capacity of an ATDS (ACA, and PACE petitions); Petitions Relating to whether there should be a “safe harbor” for calls to re-

assigned numbers (United Healthcare Petition; ACA petition).

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1. Use cell phone ID technology to identify cell phone numbers and ported numbers (See FCC warnings).

2. Seek specific representations from creditor clients whether client had prior express consent to call consumer using dialer.

3. Ask Creditor Clients: include express consent language and arbitration clauses with class action waivers in contracts - FCC 2008 Ruling, nt 37. (Caution –consent contained in terms/conditions consumer not aware of may not be binding - See Roberts v. PayPal, Inc., 2013 U.S. Dist. LEXIS 76319 (N.D. Cal. May 30, 2013). Add language: consumer required to give updated contact info.

4. Use Broad Consent Language in Terms/Conditions - Protect others down the line – may help defeat vicarious liability argument.

Take Aways

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5. Collectors who “capture” telephone numbers on inbound calls should have their software immediately alert collector to obtain proper consent – Pop Ups? Don’t load numbers into dialer.

6. When in doubt, manually dial calls – or look to other non-dialer solutions – unless or until PEC is obtained.

7. Careful regarding “preview/power” dialing. May not constitute “human intervention” due to dialer “capacity” issue. FCC 2008 Ruling. (See FCC Petitions)

8. Train collectors to seek proper consent to call numbers associated with account.

Take Aways, continued

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9. Document proper consent in software, identify phone fields for cell numbers when PEC obtained! (could help avoid class certification)

10. Be able to distinguish between numbers received from client vs. your own skip tracing efforts. DANGER – skip tracing.

11. Discard random or sequential number generator programs in dialers.

12. Examine securities filings, websites, responses to RFP, Marketing materials, to avoid references to “dialers,” predictive, auto-dialers, ATDS, etc. May have to look back as to what was stated in prior docs due to potential 4-year TCPA statute of limitations in some jurisdictions.

Take Aways, continued

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THANK YOU

QUESTIONS? David J. Kaminski, PartnerCARLSON & MESSER LLP5959 W. Century Blvd. Suite 1214Los Angeles, California 90045

Dir: (310) 242–2204E-mail: kaminskid@cmtlaw.com

Ryan ThurmanContact Center ComplianceDNC.com866-DNC-LIST (362-5478) x 116ryan@dnc.com

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