In a
post last month I discussed how Fair Debt Collection
Practices Act (“FDCPA”) suits have been on the decline over the
past year while
Telephone Consumer Protection Act (“TCPA”) claims have
continued to grow and are up as much as 70% this year alone.
An obvious reason for this decline and increase is the environment
we live-in, where we are virtually attached to our cellular
phones. The more companies that reach out to their debtors
for collection by calling mobile numbers, the more likely it is
TCPA complaints will continue to rise.
While companies are clear as to what their boundaries are in
regards to contacting consumers using autodialers and automated
voice messaging, there is still a great amount of ambiguity under
the TCPA allowing for the growing number of cases filed each
year. The clearest explanation for the
increase in TCPA lawsuits is as a result of the opinion decided
earlier this year in Soppet v. Enhanced Recovery Corp.
(“Soppet”).
In Soppet, the U.S. District Court for the Eastern District of
Illinois held that under the TCPA a “called party” is the person
who actually receives the call and a person can file suit under the
statute even if the consumer is not the “called party”. In
Soppet, AT&T believed two of its customers, Soppet and Tang,
were in debt to it and hired Enhanced Recovery Corp. (“Enhanced”)
to collect the debt on its behalf. The customers provided
AT&T with their cellular telephone numbers as their contact
information which Enhanced used to contact them on numerous
occasions to collect the debt. When calling Soppet and Tang,
Enhanced used automated or predictive dialing systems and left
several prerecorded messages addressed to them.
Under the TCPA it is illegal to call a cell phone using an
automatic telephone dialing system or an artificial or prerecorded
voice without prior consent. Soppet and Tang sued
Enhanced for violating the TCPA when it placed numerous calls using
an automated system to their cell phones, arguing that while they
provided AT&T, the original creditor, with their cellular
numbers, they never gave consent to use the numbers as a means of
communication.
In response to the suit, Enhanced argued that both Soppet and
Tang were not the “called parties” under the statute and could not
file suit, however the court rejected this argument stating the
TCPA is clear that any recipient of a call may file suit under the
TCPA. Enhanced also argued that it was not in violation of
the TCPA as it had the debtors’ prior express consent to make the
phone calls. Again, the court rejected Enhanced’s argument as
the consent was given to AT&T and not directly to Enhanced and
prior consent is not sufficient. The court held that prior
consent to AT&T does not serve as express consent of the called
party required by the TCPA for autodialed, non-emergency calls to
cell phone numbers.
If you believe you have experience a
violation of the TCPA and would like the advice or assistance
of counsel, contact SmithMarco P.C. for a free case review.