Making TCPA Debt Collection Calls or Texts? Think Twice

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Many of our readers are generally aware of the restrictions placed on telemarketing calls by the Telephone Consumer Protection Act (“TCPA”).  Specifically, the TCPA prohibits marketing phone calls and texts that are made using automated dialing equipment or that contain artificial voices and/or pre-recorded messages.  Some readers may also be aware of the fact that there are a few exceptions included in the TCPA for calls and/or texts that are informational in nature and that do not contain a marketing message.

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To illustrate this exception, the Federal Communications Commission (“FCC”) included several examples in its TCPA commentary of what it considers informational calls and/or texts.  Debt collection calls were explicitly included as one of those examples, but courts around the country have ruled otherwise . . . .

TCPA Debt Collection Cases

One of the most frequent questions that we receive from our clients is whether debt collection calls and/or texts are exempted from the TCPA.  The answer is that it depends on the circumstances of each case and the area of the country in which the calls and/or texts are received.

For instance, last week a California federal court ruled that debt collection calls made to a consumer’s mobile phone were not exempt under the TCPA.  Despite the FCC’s express exclusion of debt collection calls, the Court reasoned that the exclusion is only applicable to calls made to residential landlines.  Thus, the Court found that debt collection calls and/or text messages placed/sent with the intent to recover money are within the parameters of the TCPA and give rise to a potential class action lawsuit.

Other courts have disagreed with the California Court, finding debt collection calls and/or texts exempt under the TCPA.  A New York federal court held that the FCC’s intent was to exclude all debt collection calls and/or texts from the TCPA.  Due to the fact that the FCC did not limit the exception solely to residential landlines, the Court held that debt collection calls and/or text messages placed/sent to mobile phones were also exempt from TCPA liability.

Takeaway

The cases listed above are just two examples of how courts have dealt with debt collection calls and/or text messages under the TCPA.  Courts across the country may apply their own caselaw interpreting the applicability of the TCPA to debt collection calls and/or texts.  Obviously, the propriety of debt collection calls and/or texts under the TCPA is an uncertain topic and one best not left to chance.

If you are interested in learning more about this topic or need to review your telemarketing practices, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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