On January 4, 2008, the U.S. Federal Communications Commission (FCC) issued a declaratory ruling on the effect of the Telephone Consumer Protection Act (TCPA) on debt-collection calls placed to consumers on their wireless telephone numbers. The ruling was issued to clarify provisions of the TCPA that generally prohibit the use of an automatic telephone dialing system (autodialer) or an artificial or prerecorded voice to call a wireless number or any other number for which the called party is charged for the call absent an emergency purpose or “prior consent of the called party.” By contrast, debt collection calls to wireline telephone numbers using autodialers or prerecorded messages fall within a statutory exception for calls to non-cellular numbers that are commercial but do not include an unsolicited advertisement.
Although the FCC had earlier determined that it was unlawful to make a call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number, the FCC has now clarified that calls made to a wireless number provided by the called party in connection with an existing debt are made with the “prior express consent” of the called party. The FCC stated that a consumer’s provision of a wireless telephone number to a creditor reasonably evidences the consumer’s prior consent to be contacted at that number regarding the debt.
The FCC noted that consent is deemed granted only if the wireless number was provided by the consumer to the creditor during the transaction that resulted in the debt. In the case of a dispute, the creditor will bear the burden of showing that it obtained consent to call the consumer’s wireless number, such as through copies of purchase agreements, sales slips and credit applications. The creditor is also responsible for all autodialed or prerecorded calls made by a third-party debt collector to the consumer’s wireless number. Creditors are therefore advised to include language in credit applications and other documents informing consumers that their provision of a wireless number constitutes consent to receipt of autodialed and prerecorded messages from the creditor or its debt collection agents at that number.