The Telephone Consumer Protection Act (TCPA) prohibits making “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 … to any telephone number assigned … to a telephone service.” 47 U.S.C. §227(b)(1)(A)(iii).
Aggrieved parties are entitled to receive actual monetary loss, or to receive $500.00 in damages for each such violation, whichever is greater. 47 U.S.C. §227(b)(3)(B). The TCPA defines an “automatic telephone dialing system” as “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 U.S.C. §227(a)(1).
“The TCPA allows autodialed and prerecorded message calls if the called party expressly consents to their use.” Pinkard v. Wal-Mart Stores, Inc., 2012 WL 5511039, *3 (N.D. Ala. 2012) (quoting In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8769 ¶29 (Oct. 16, 1992). See also, Jordan v. E. R. Solutions, 900 F. Supp. 2d 1323, 1327 (S.D. Fla. 2012)(“The TCPA allows a collector to make automated or prerecorded collection calls if the called party has given prior express consent.”).
In E.R. Solutions, Inc., in granting the defendant’s motion for summary judgment, the district court pointed out that the consumer, as a term and condition of her purchase, agreed that the creditor and any other servicer may use the information provided to contact her in relation to any purpose of the account, including debt collection. Id. In Johnson v. Credit Protection Ass’n, L.P., the district court granted the defendant’s motion for summary judgment on the plaintiff’s TCPA claim after the plaintiff provided his cellular telephone number to Comcast when setting up cable service. 2012 WL 5875605, *4 (S.D. Fla. 2012).
In order to avoid any potential TCPA claims, companies should always obtain express written permission from their clients that they and/or any entities acting on their behalf can contact their clients on their cellular phones regarding any matter relating to their account(s), including debt collection.
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