FCC Asks for Comments on a Challenge to Collectors? Use of Autodialers to Contact Cell Phones

In January of this year, Paul D.S. Edwards filed a petition with the FCC for “an expedited clarification and declaratory ruling regarding the Commission’s rules under the Telephone Consumer Protection Act (TCPA).” Specifically, Edwards is asking whether creditors and debt collectors are allowed to use autodialers and prerecorded messages to reach consumers on cell phone numbers that were originally associated with landline service, but then converted to wireless service by the consumer.

Edwards’ asserts in his petition that many consumers transfer or “port” their landline telephone numbers to wireless service when initially signing up for cell phones. If the consumer provides a landline number at the time of a credit application and then later ports that number to wireless service, then the “prior express consent” required to make automated or prerecorded collection calls to a wireless number under the TCPA does not exist. Edwards concludes that compliance with the TCPA requires that the consumer must have provided the creditor a telephone number assigned to a wireless service in order for calls to the wireless telephone number to be permissible.

In a declaratory ruling released in January 2008, the FCC announced that the prior express consent requirement of the TCPA is satisfied when a debtor provides a cell phone number to a creditor during the transaction that results in the debt owed ("FCC Rules Creditors, Collectors May Call Cell Phones with Autodialers, Prerecorded Messages," Jan. 4, 2008). With this ruling, the FCC relieved debt collectors of the need to follow more onerous procedures, such as obtaining separate consents, before making collection calls to debtors at wireless telephone numbers that were provided on a loan application or otherwise furnished at the beginning of the business relationship.

ACA International, the association for credit and collection professionals, distributed a letter early Thursday urging members and others in the accounts receivable management industry to register comments with the FCC on the petition. ACA’s request led to the declaratory ruling in 2008.

The FCC placed a notice on the Federal Register on March 18 asking that any interested party submit comments on the petition by April 2. The deadline for reply comments is April 13. Comments may be submitted through the FCC’s Web site: http://www.fcc.gov/cgb/ecfs/, or the Federal eRulemaking Portal: http://www.regulations.gov. Comments can also be sent by email to ecfs@fcc.gov and by mail to 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002.

Paul D.S. Edwards is no stranger to requests for clarification of rules that impact the ARM industry. A quick Internet search of his name reveals numerous requests to the Federal Trade Commission for clarification of the Fair Debt Collection Practices Act (FDCPA) dating back to 1991. Several of his requests list him as associated with the “Consumer Information Center, Inc.” His name also appears on several lawsuits against debt collection agencies.