Collector - October 2017 - 20
have provided consent
to be called on their
VoIP line, debt collectors
using an autodialer may
put themselves at risk
every time they dial a
NUMBER OF TCPA
AS OF JULY 31, 2017.
Some residential VoIP services are free,
while other providers charge consumers
for the service, often on a per call or per
minute basis. And unless consumers have
provided consent to be called on their VoIP
line, debt collectors using an autodialer may
put themselves at risk every time they dial a
While there isn't a lot of case law out there
on the use of VoIP under the TCPA, a few
cases do shine a light on the importance of
knowing the type of number you are calling.
In the 2014 Lynn v. Monarch Recovery
Management Inc. case, the consumer was
charged a monthly rate by the VoIP service
provider, and also for incoming calls and
transmission of caller ID information. The
consumer did not give the debt collector
permission to call him or his number.
Also, the consumer called the debt
collector twice to advise that he received
per-minute charges for phone calls. The
debt collector called the consumer three
more times after that notice.
The Fourth Circuit Court of Appeals
ruled in favor of the consumer, issuing an
unpublished opinion that a debt collector
violates the TCPA when it uses an ATDS to
call a residential VoIP number that causes
the consumer to incur a cost.
The collection industry did get further
clarity on this issue just a few months ago. In
Klein v. Commerce Energy, Inc., the plaintiff
provided his Google VoIP phone number
to an energy provider and had the number
forwarded to his cell phone. Later, when he
started getting calls from Collectcents, the
energy company's third-party debt collection
partner, he sued Commerce Energy for
violating the TCPA. Ultimately the court ruled
for the defendant in part because the Google
VoIP service was free and the consumer was
not charged by his mobile provider for calls,
nor were his minutes deducted.
In weighing how to handle VoIP
numbers, the big issue seems to be whether
or not the consumer's provider charges for
its service. The problem? Right now, there's
no failsafe way for debt collectors to know
if the consumer is being charged for that
service or not.
"We may be able to tell if [the number is]
a VoIP through a VoIP scrub, we may even
be able to tell if it was ported, but we almost
certainly can't tell if the consumer is going to
incur a cost for this call," Womack said. "So
while the [Klein] case was favorable for the
industry, it didn't go as far as we would like
or call up some of those other questions we
would like answered."
That's why some agencies are erring on
the side of caution-identifying all VoIP
lines and scrubbing them from their system
to be called manually until they can get
consumer consent to be put on the dialer.
Womack observed that only approximately
10 percent of his clients say they currently
scrub for VoIP numbers, but he expects that
number to increase.
"The cost of the VoIP scrubs has come
down and there are more providers doing
it now, so it's getting pretty accessible,"
Womack said. "But even with those, I haven't
found any scrubs available that would tell
you which numbers have a cost and which
don't. Not many VoIP providers charge for
their service but there are a few. And without
knowing, more agencies are erring on the
side of caution and assuming the consumer
could be charged for that call. That's part of
the peril of calling VoIP numbers-you just
don't have any way of knowing."
CONSENT TO BE CONTACTED
The TCPA requires the consumer's prior
express consent to receive autodialed calls
on their cell phone, but it is silent on the
details of consent revocation. The Federal
Communications Commission's 2015
declaratory ruling not only expanded the
definition of an autodialer, but also clarified
that consumer consent to receive autodialed
or prerecorded message calls can be revoked
in any reasonable way at any time, either
orally or in writing.
A decision in the ACA International
v. FCC case, which questions the FCC's
interpretation of the TCPA, was still
pending at press time. But while we wait for
that decision, another case in the Second
Circuit Court of Appeals recently dug a
little deeper into the consent issue.