Present Capacity and Effective Consent: Two Parts of a Compelling TCPA Panel at ACA

CHICAGO, Illinois — The Telephone Consumer Protection Act played to packed audiences through two sessions at ACA International’s 75th Anniversary Convention & Expo.

At issues for those in the debt industry are:

• Effective Consent Language
• Present Capacity

“We have to find a way to make [consent] compelling to creditors,” David Kaminski, one of the presenters and an attorney with Carlson & Messer, told one session. And it was a point that resonated throughout the audience.

For a collection agency to contact a consumer via cell phone, there needs to be express consent. Often that can be obtained at the time the consumer fills out the original creditor’s application.

Simple enough — which should immediately set off any warning bells in your compliance process.

The consent language needs to be clear to the consumer and inclusive for the creditor/collection agency. It needs to make the consumer aware that he could be called for any reason by the creditor and any of the creditor’s business associates — for example, a collection agency.

Getting language about dialers and automatic messaging can’t hurt either, according to Kaminski. Nathan Sturycz, Kaminski’s co-presenter and chief compliance officer at Credit Control, explained why: the most explicit written consent is a better ally in court.

The concept of “present capacity” proved to be a significant wrinkle.

According to the TCPA, an “automatic telephone dialing system” is one that has the present capacity to store or produce and call numbers from a number generator at the time the calls are being made. What “present capacity” means is, however, seems to be a Term of Art that is viewed in different ways by different courts. A debt collector can claim that no automatic dialing is used for telephone calls; however, the mere presence of the capacity to do so is what can put many agencies afoul of the TCPA and the FCC.

One of the attendees I spoke with after one of the TCPA presentations said, “I didn’t learn anything that I didn’t already know — but boy was it comforting to know that so many others are at the same place we are.”