TCPA Requires Debt Collectors to Have Written Consent Before Calling Your Cell

The Telephone Consumer Protection Act (TCPA) prohibits debt collectors from calling you on your cell phone, among other things, unless you’ve given them express written consent to do so. Even though the TCPA has been in place for over 15 years, debt collectors continue to violate it.

An Example of a TCPA Violation

Steve Recordon, an attorney from San Diego, California whose firm represents individuals who have been sued or harassed by debt buyers, shared an example of a typical TCPA violation with us during a recent interview:

Let’s say somebody takes out a Capital One credit card account. They have to fill in certain information such as next of kin, your nearest relative, your home phone/work phone/cell phone, etc. They ask that information on the application. However, the TCPA says that they cannot call the cell phone unless they have what’s called express written consent to call it. So, merely putting that number down on an application is not express written consent.

People use their cell phones as their only means of communication these days. In other words, they have no landlines. Recordon says that when you put down the cell phone and nothing else on that application, now you’re probably not going to qualify because the courts are going to say that if that’s the only phone number you provided, then that will probably be viewed as express written consent. He continued, “Since these companies have been getting tagged, they’ve been changing their applications. Many applications now say, ‘Your signature at the bottom of this page is giving us express written consent to call you on your cell phone.’ That holds up in court, but it’s relatively new.

Who Are the Debt Buyers Calling?

Everyone, according to Recordon. “It doesn’t have to just be a debtor, because what happens with these collectors is that they’re not just calling the debtor. I’ve seen them call the debtor’s son, daughter, mother, father and neighbors. They’re calling all of them and many times they’re calling them on their cell phones. They do a skip trace to get the cell phone number. When they find that cell phone number, they know they’ve got a much better chance of actually connecting with somebody due to the increased use of cell phones these days.”

TCPA Class Actions

Recordon says that filing class actions is the way to deal with these issues, but that the class actions are usually within state borders. He told us, “Unfortunately, there are not many attorneys who are familiar with this area of the law. So, if a class action needs to be filed in Arkansas, I can work with attorneys there to make sure that it’s handled properly. It’s good to have a lawyer and a law firm that’s already dealt with these cases. It takes money to deal with a class action and attorneys generally advance monies to prosecute the case. In addition, a court will have to certify the class and part of the certification process is that the attorney handling it has the wherewithal to handle 1,000, 10,000 or 50,000 clients.”

Case Studies: Debt Collectors to Have Written Consent Before Calling Your Cell

Case Study 1: TCPA Violation Through Lack of Written Consent

Mr. Smith, a debtor, discovered that a debt collector had been calling his cell phone without his express written consent, violating the TCPA. Despite the law’s existence for over 15 years, such violations persist. The debt collector relied on information provided in the credit card application, assuming it constituted consent.

However, the court deemed that mere inclusion of a cell phone number on the application did not qualify as express written consent under the TCPA.

Case Study 2: Debt Collectors Targeting Multiple Contacts

Attorney Steve Recordon from San Diego shared that debt collectors often target not only the debtor but also their family members, neighbors, and acquaintances. They perform skip tracing to locate cell phone numbers, knowing that they are more likely to connect with individuals through their cell phones. This practice raises concerns about privacy and compliance with the TCPA.

Case Study 3: Utilizing Class Actions for TCPA Violations

Mr. Recordon emphasizes that filing class actions within state borders is an effective approach to address TCPA violations. However, this process requires specialized knowledge of the law and sufficient resources to handle a large number of clients. Attorneys must advance funds to prosecute the case and obtain certification from the court to represent the class.