TCPA — Second Key: Did You Give Permission to Call Your Cell Phone?

TCPA — Second Key: Did You Give Permission to Call Your Cell Phone?

TCPA -- Second Key: Did You Give Permission to Call Your Cell Phone?We want to continue our discussion of the 5 keys to using the TCPA (Telephone Consumer Protection Act) to stop abusive calls coming in to your cell phone.

You can find the first key here — only certain calls to your cell phone are covered by the TCPA.

Now let’s talk about the second key in any TCPA case…

Assuming it’s a computer dialed call, did you give permission?

There has been a lot of litigation over this.

If you listen to what the industry, the debt collectors, the credit card companies, or the auto finance companies say, they say, “If you ever call us from your cell phone, then you’ve just given us permission because it’s on the Caller ID.”

Quite wisely, this has been pretty well rejected by federal court judges.

Here’s what the truth of the matter is.

If you gave permission when you opened the account, then they’re allowed to call.

The question is, “Who do you give permission to?”

If you give it to the original creditor, then certainly the original creditor can call you, as well as any debt collector that the original creditor has hired.

What about if we have a debt buyer who is number eight in line?

That’s a question where there can be arguments on both side — the safe course of action is to revoke any alleged consent which we cover here.

What about if you never had this particular cell phone number, but when you take out a credit card a debt buyer/collector is calling you on that number three years later and they’re using a computer?

Is that legal?

Only if you gave that collector the number and permission to call.

There is a question about, “Do you have to give that cell phone number at the time of the transaction?”

This is, in my opinion, what the law literally says. It has to be when you open up that credit card, take out that car loan, or check into the hospital and give your phone number.

The other side obviously argues, “No, if you ever give it to us, then we can blow up your phone without mercy.”

They would say, “If you ever called the credit card company and they say, ‘By the way, Susie, while I have you on the line, let me just verify your contact information?’ and she give us her cell phone, she has now given us permission to text message her and call her on her cell phone with computer dialers.”

We talk a different position.

Just understand that there is some arguments here and I think the tide is turning in the favor of the consumer.

There were some new regulations concerning telemarketing calls that came out in October that have some application to what we’re talking about that make it even clearer that it has to be really clear and solid permission.

In other words, it can’t be just a creditor or collector arguing that saying “What’s your number, in case I need to call you back if we get disconnected?”

I don’t think that’s going to be good enough.

Let’s assume they called your cell phone with a computer dialer. The company you’re suing is going to say, “You gave us permission.”

They have to prove that.

You do not have to prove it.

They like to say, “It’s in my notes, so obviously you did. You have to prove you didn’t.” I think most judges have caught onto this and they say, “No, this burden is on the company that’s calling with a robodialer or autodialer.”

Always keep that in mind as we go through this analysis:

  • “Am I getting computer calls to my cell phone?” and
  • “Did I give permission for those calls to my cell phone?”

Contact Us.

If you live in Alabama and have questions about the TCPA may protect you, give us a call.

You can reach us by phone at 1-205-879-2447,

 You can also contact us online and we will be glad to discuss your options with you.

We are also happy to send you a free information package so you can better understand your rights.

Thanks for reading, and have a great day!

-John G. Watts

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