Collector - July 2018 - 47
be able to store or generate random or
sequential numbers and dial them.
Document detailed policies and
procedures outlining the capabilities of your
ATDS and how you use it.
"When I'm looking at policies and
procedures for how to develop a call list,
even for a predictive dialer, you'd better
believe that every single human function that
exists is incorporated into that document so
I can show how many times this thing would
die on the vine without a human to keep it
moving along," Meier said.
Until we get guidance from the FCC,
courts and case law will control the
definition of ATDS. Keep an eye on TCPA
litigation developments and FCC rulings for
new significant decisions.
In the meantime, think about the
consumer experience when it comes to your
"The idea behind the TCPA is not to
inundate consumers with unwanted phone
calls," Meier said. "Adding a human touch to
your dialing process is a good consideration,
but if you are still inundating consumers
with unwanted phone calls, even if there is a
human element I think we will continue to
have TCPA litigation and issues."
HOW TO HANDLE:
The D.C. Circuit Court of Appeals did
not explain what rules apply to calls to
reassigned phone numbers nor did it define
a "called party" under the TCPA.
"But I think the best practice is that we
should still consider the 'called party' to be
the 'current subscriber' and not the 'intended
recipient,'" Scheibe Eliason said.
Identifying and handling reassigned
numbers, however, continues to be tricky.
When developing your operational
strategy, think about how you assess the
age and source of each phone number
attached to an account and apply
For instance, do you have the same phone
number in your system attached to different
consumers? If so, there's a good chance the
number has been reassigned. Flag it, and
manually call that number until you're sure
you have the correct subscriber.
Number reassignment doesn't happen
overnight-instead, there's generally a period
of disconnect, which can last several days or
"If you're looking at your dialer history
and you see that you dialed a number
successfully for a month, and then there
was a six-day period where you were
getting nothing but SIT tones when you
dialed-that's a pretty good sign that
maybe that number is no longer good and
may have been reassigned," Meier said.
"You need to look for that kind of activity
and pull it out, otherwise you are playing
Before placing a call, confirm consumer
contact information is current and
document any inaccuracies. If you come
across an incorrect or reassigned number,
remove it from your records right away and
report it to the creditor.
HOW TO HANDLE:
REVOCATION OF CONSENT
Called parties can revoke their consent to be
contacted through any "reasonable means"
that clearly expresses a desire to receive no
further calls or messages from the caller.
Revocation can be oral or in writing, and
doesn't require consumers to necessarily use
any special words or phrases.
Make sure you offer consumers reasonable
and easy-to-use opt-out methods.
Create written consent revocation
policies and procedures, and regularly
train collectors on how to recognize and
document oral consent revocation.
"It doesn't need to be as formal as:
'Under the TCPA of 1991, I hereby
revoke...' It can be as simple as: 'You
guys are really annoying me. Let it go.'
Make sure your agents understand that,"
Contractual consent revocation clauses
are enforceable, so Meier encouraged
collection agencies to work with their
clients to establish unambiguous consentto-contact provisions and revocation terms
in their consumer contracts.
ON THE FLOOR
For a collector-level TCPA
refresher, check out p. 14.
"Then you have something you can throw
back at the plaintiff in a TCPA litigation in a
very effective way, and I think that's very, very
good news for the industry," Meier said. "We just
have to educate our clients, who maybe don't
deal with this the way we do, on the right way
to go about communicating that in advance and
making it a central part of the agreement."
Maintain consumer consent records for
four years plus one day from the end of the
collection cycle-a timeline that corresponds
to the statute of limitations for TCPA lawsuits.
To get additional clarity on these issues,
we're going to have to wait for the FCC to
On May 3, ACA joined 17 other
organizations in filing a Petition for
Declaratory Ruling, requesting that the FCC
provide clarification to the TCPA's definition
of an automatic telephone dialing system.
Almost two weeks later, the FCC issued a
notice seeking comments related to TCPA
interpretation and implementation, which
were due June 13.
Nobody knows when the FCC will issue
new TCPA rules. Scheibe Eliason speculated
that we could see something from the FCC
by next spring-and though she stressed this
was only a guess, she was optimistic about
"I feel very good about our chances at
seeing some much-needed TCPA relief,"
she said. "We're working hard on this and
making some progress, and there's definitely
more to come."
Anne Rosso May is editor of Collector
To purchase a recording of this teleseminar,
which includes additional compliance strategies
as well as sample language for client contracts,