Unless I'm missing something, I agree with "Cheeks" - several rulings have taken some of the teeth out of the TCPA. On January 4, 2008, the FCC ruled that "autodialed and prerecorded message calls to wireless numbers provided by the called party in connection with an existing debt are permissible because such calls are made with the prior express consent of the called party." The FCC said that "express consent" occurs when someone requesting credit or a loan merely lists his/her cell phone number on the application. See
http://findarticles.com/p/articles/mi_qa5315/is_200803/ai_n25137911/Then, on or about May 20, 2008, the US District Court for the Northern District of California ruled that creditors can't use the auto-dialers/pre-recorded messages to call consumers' cell phones because of discrepancies with respect to the definition of "consent." See Leckler vs. CashCall (2008 WL 2123307 (N.D. Cal, May 20, 2008). At this point, things were in our favor again.
Then, in November of 2008, the same court that just helped us out voided their decision because they allegedly didn't have proper jurisdiction. See
http://www.pierceatwood.com/showarticle.asp?Show=690As it stands now, it appears to me that if you put your cell # on a credit or loan application, then the creditors can call that cell phone with an auto-dialer or pre-recorded messages. However, if you didn't give them the cell # and they got it from someone else, then you can sue under the TCPA. It seems ridiculous that the legal system keeps wavering while we're being annoyed, harrassed, and screwed.
There's a new class-action suit in which Sallie Mae used auto-dialers and techno-harassment to annoy their customers. However, I think the basis of this suit revolves around people who never initially provided the cell numbers to Sallie Mae when completing applications. The only relief I can see for people who gave out their cell numbers is for them to send the creditors/collectors a letter telling them to stop calling by phone and send that letter via certified mail with signature verification. The basis of this would be a violation of the Fair Debt Collection Practices Act which prohibits harassing and annoying calls. I think you can only get about a $1000 for this violation.
It's my understanding even the new ruling allows people who gave "express consent" to withdraw that consent. But how do we withdraw "express consent" if we initially gave it just by including the cell #?? Do we have wait til' they call us and then inform them that we're recording the call and then revoke the express consent (that we didn't even know we gave)? Do we have to do it in writing? I would guess that there are drone collection agents that would disregard this assertion because they don't have a lot of legal knowledge and maybe this could set us up to get money under the TCPA later. Any insight would be appreciated.
Have there been any new rulings in our favor or are we once again screwed if we included our cell numbers on credit/loan applications even though we never signed anything saying we specifically consented to being called by auto-dialers/pre-recorded messages? It's difficult just to keep up with the legal rulings here.
