Illegal Calls To Cell Phones Under The TCPA and FDCPA
Illegal Calls To Cell Phones Under The TCPA and FDCPA
For so many of us our cell phones are critically important.
We sometimes say as long as we have our keys, wallets, and cell phones – then anything we forget can be replaced. So we always have our cell phones with us.
Collectors know this – that’s why they call our cell phones.
Is it legal for collectors to call our cell phones?
The short answer is “sometimes”.
Often times the Fair Debt Collection Practices Act (FDCPA) is violated.
The most powerful law that is normally violated is the Telephone Consumer Protection Act (TCPA). When a collector violates this law, the collector can liable for $500 or $1500.
Yes – the collector that calls you cell phone five times a day may be liable to you for $2500 or $7500. Per day.
This is a powerful law and is one of the only ways to stop illegal collection activities against you.
You may remember the Lady Gaga and Beyonce song “Telephone” – it has this line in it that is a perfect description of how collectors view our cell phones:
Boy the way you blown up my phone
Won’t make me leave no faster
Put my coat on faster
Leave my girls no faster
I shoulda left my phone at home
‘Cuz this is a disaster
Calling like a collector
A collector has the right to collect a valid and legitimate debt.
A collector has the right to contact us on our cell phone.
But how the collector contacts us and what the collector says determines if the call was legitimate or illegal.
So often collectors decide they can “cross the line” and break the law to collect a legitimate debt.
But it is wrong to use illegitimate means to collect a legitimate debt.
If you live in Alabama and have any questions call us at 205-879-2447.
Use Of An Auto-Dialer Against Our Cell Phones Is Normally Illegal
Auto-dialers or predictive dialers are the computer generated calls to your cell phone.
When you pick up the phone, here are the possibilities as the computer looks for a human collector to transfer your call to:
- There is a recording that greets you and says “Please hold for the next available representative”;
- A human collector comes on after a brief pause and asks you “What is your name?” as they are trying to figure out who you are while their computer screen is pulling up your information;
- A pre-recorded message comes on asking you to “push 1 if you are [your name]” or asking you to call back a toll free number;or
- The call is disconnected or “dropped” if there is not a human being available.
Here’s the deal.
Collectors use to manually make the calls. That is inefficient . . . so collectors normally have a computer make the calls.
If you gave permission to the collection agency or the original creditor to call your cell phone, then it may be that this is appropriate to use auto-dialers against you.
But if you did not give permission then using an auto dialer violates federal law.
Sometimes when we sue collectors for doing this, the defense lawyers will say “Your client must have given her permission or else how would we have her cell number?”
When I have responded that collection agencies can find cell phone numbers the lawyers act shocked that this information is available.
“Surely in 2010 there is no way any company would have your cell phone number – that is private!” they say. . . .
They claim no one can find your cell phone number.
Considering that collectors can find out the name of your neighbor’s dog (ok – a slight exaggeration) – it is no problem using the many resources out there to find your cell phone number. Welcome to the “Information Age” Mr. Defense Lawyer…..
What If I Gave Out My Cell Phone Number To The Collector? Revoke Any Permission You May Have Given To Call Your Cell Phone.
If you think you may have given permission to call your cell phone, revoke that permission immediately.
We suggest sending a letter that sets forth your cell phone number and tells the collector they no longer have permission (if they ever did) to call your cell phone.
Send all letters certified mail, return receipt requested.
You can also tell them on the phone the same thing. A couple of points:
- Document everything about the call – who you spoke with, what you said, the time and date of the call, the number you called or that called your, etc;
- If the collector agrees to a recording – then record the call and document you telling the collector to stop calling you on your cell and that you revoke permission to call your cell phone; and
- It still is a good practice to send the certified letter we mentioned above.
Pre-Recorded Messages Or Machine Generated Voices To Our Cell Phones Normally Violate The TCPA
A pre-recorded message is simply a message that has already been recorded and is now being played for you.
Either while you have the phone to your ear or it is left on your voicemail.
Sometimes this message is a human voice but it is not being left “live” but instead is “pre-recorded.”
Other times it is a computer or machine generated voice. Sometimes it is a combination.
You may have heard this before:
“This message is for [your name – said with a computer voice]. If you are not [your name – said with a computer voice] then please hang up. There will now be a five second pause.”
It is doubtful that collector Bob was saying this “live” to you and pushing a button to insert a computer voice speaking your name.
The TCPA has the same requirements for these types of messages as it does for auto dialed calls – if you did not give consent or you revoked your consent, then these calls violate the TCPA.
Collectors Can’t Be Abusive Towards You On Your Cell Phone
Whether it is your home phone or your cell phone, a collector cannot be abusive towards you. This means the collector can’t:
- Lie to you (i.e. you are going to jail, etc);
- Treat you unfairly (i.e. threaten to sue you after the statute of limitations has expired, etc); or
- Treat you with a lack of respect or lack of dignity (racial slurs, profanity, insulting language, etc).
We discuss these types of abusive collection tactics in more detail in our Frequently Asked Questions On Creditor Harassment.
Voicemails On Your Cell Phone Can Violate The FDCPA
We discuss this in more detail in our article on illegal voicemails but here is a quick overview:
- Voicemails that do not contain the “Mini-Miranda” – which is “This is a call from a debt collector and is an attempt to collect a debt” violate the FDCPA (these are present in about 50% of the voicemail messages from collectors); or
- Voicemails that, as mentioned above, contain lies, unfair treatment, or communicate a lack of respect or undignified treatment of you.
Save And Document All Voicemails
As with any calls or voicemails, carefully document who called and when and what was said.
Save all voicemails!
Having the voicemail saved gives you proof that the collector actually did call you and leave a voicemail.
If The Law Was Violated, Sue To Recover Money Damages And Stop The Abuse!
Maybe you have received illegal autodialer calls, and you may be entitled to $500 or $1500 per call under the Telephone Consumer Protection Act (TCPA).
If the voicemail was threatening, revealed the debt to a third party, or did not contain the required mini-miranda disclosure (“this is an attempt to collect a debt by a debt collector”) then the Fair Debt Collection Practices Act (FDCPA) has likely been violated.
If you live in Alabama, feel free to contact us for a free consultation on your rights to sue these abusive bill collectors who break these laws.
They do this because they assume that you don’t know what your rights are and even if you do, you won’t do anything.
Prove them wrong – take action.
You can call us at 205-879-2447, or you can fill out a contact form and we will get in touch with you as soon as possible.
I look forward to speaking with you!
Have a great day.