{"id":431,"title":{"rendered":"Debt Collectors Using Autodialers, Beware! Defending TCPA and FCCPA Claims in Florida"},"content":{"rendered":"

\r\nCallan L. Albritton1<\/a> <\/span> 1 <\/span>Callan L. Albritton<\/a> recently began serving as a law clerk for the U.S. District Court Magistrate Judge Anthony Porcelli. Previously, Mr. Albritton worked as an associate at Wiand Guerra King PA in Tampa, Florida, where he focused his practice on complex commercial litigation and securities litigation.<\/span><\/sup>\r\n<\/h2>\r\n
\r\n3 Stetson J. Advoc. & L. 55 (2016)<\/b>\r\n<\/div>\r\n

\r\n<\/a>I. Introduction\r\n<\/h2>\r\n\r\n

<\/a>This article primarily examines the dangers, and the best ways to avoid those dangers, for debt collectors making autodialed collection calls in Florida. Florida state and federal law complement each other to create powerful weapons for debtors who have received these calls, greatly increasing exposure for debt collectors.<\/p>\r\n\r\n\r\n

<\/a>Broadly speaking, an autodialer is any system that can make telephone calls without human intervention. This includes machines that dial numbers from a random number generator, or machines that dial preprogrammed numbers. The Telephone Consumer Protection Act (TCPA),2<\/a> <\/span> 2 <\/span>47 U.S.C. \u00a7 227<\/a> (2012).<\/span><\/sup> though not specifically targeted at debt collectors, imposes liability on anyone who makes autodialed telephone calls without prior consent of the person called. Although the TCPA does not create liability for calls dialed by hand, debt collectors commonly use autodialed calls to contact debtors because it is a more efficient and less costly means of placing calls. The TCPA imposes monetary penalties on a per-call basis, which quickly increases financial exposure for nonconsensual autodialed calls. Furthermore, the Federal Communications Commission recently released new rules which make it more difficult for debt collection callers to avoid liability.<\/p>\r\n\r\n\r\n

<\/a>In addition, the Florida Consumer Collection Practices Act (FCCPA) specifically applies to debt collection activities in Florida.3<\/a> <\/span> 3 <\/span>Fla<\/span>. Stat<\/span>. \u00a7\u00a7 559.55\u2013559.785<\/a> (2015).<\/span><\/sup> The FCCPA creates liability for a caller who harasses a debtor, but does not specifically explain what harassment is. Debt collectors using an autodialer may thus unwittingly harass debtors by using an autodialer to make large numbers of calls to a single debtor. The FCCPA, like the TCPA, provides liability for damages. However, the FCCPA also allows plaintiffs to collect attorneys\u2019 fees from the caller.<\/p>\r\n\r\n\r\n

<\/a>For example, a retailer that issues consumer loans may face high rates of default for small sums of money. The retailer may hire a collection agency to call a large number of these debtors. The TCPA is not implicated should the agency choose to have a representative manually (and slowly) enter each phone number separately for each call. However, economically collecting debts from numerous customers may necessitate the use of an autodialer to contact these debtors, potentially triggering TCPA liability. High call volume may implicate the FCCPA in addition to the TCPA.<\/p>\r\n\r\n\r\n

<\/a>Debt collectors\u2019 use of autodialers has become extremely common. However, when not done in compliance with the TCPA and FCCPA, liability can quickly add up for an individual claim or even spark a class-action lawsuit.<\/p>\r\n\r\n

\r\n<\/a>II. Background of the TCPA\r\n<\/h2>\r\n\r\n

<\/a>Passed in 1991, the Telephone Consumer Protection Act was originally enacted to protect consumers from telemarketing calls and so-called junk faxes, which the bill\u2019s sponsor called the scourge of modern civilization.<\/q>4<\/a> <\/span> 4 <\/span>137 Cong<\/span>. Rec<\/span>. S9840-02, 1991 WL 126847<\/a> (1997).<\/span><\/sup> The opposition to automated calls centered around four areas. First, Congress recognized that telemarketing calls were annoying, that opposition to these calls was widespread, and that telemarketers were perceived as unethical and unscrupulous.<\/q>5<\/a> <\/span> 5 <\/span>H.R. Rep<\/span>. No.<\/span> 102-317, at 8\u20139<\/a> (1991).<\/span><\/sup> Second, Congress recognized that the telemarketer using an autodialer might tie up phone lines for both business and emergency purposes. A consumer unable to use his or her telephone line might thus be unable to make an emergency call.6<\/a> <\/span> 6 <\/span>137 Cong<\/span>. Rec<\/span>. S9840-02, 1991 WL 126847<\/a>.<\/span><\/sup> Third, Congress was concerned that a consumer would have to bear the financial cost of an unsolicited fax or telephone call advertisement. Lastly, Congress wished to protect consumers\u2019 right to privacy in the home.7<\/a> <\/span> 7 <\/span>S. Rep<\/span>. No.<\/span> 102-178, at 1\u20132<\/a> (1991).<\/span><\/sup><\/p>\r\n\r\n\r\n

<\/a>The TCPA was never intended to regulate debt collectors seeking to contact customers to recover legitimate debts. However, as explained below, the TCPA\u2019s restrictions on autodialed calls are so broad that debt collectors face liability for otherwise legal calls attempting to reach debtors. In addition, on July 10, 2015, the Federal Communication Commission (FCC) released new rules that clarified the liability these debt collectors face.<\/p>\r\n\r\n\r\n

<\/a>This article will first address the elements of an action brought under the TCPA against a debt collector, as interpreted by Florida federal courts. Second, this article will explain how the FCCPA, when combined with the TCPA, can greatly increase financial exposure to debt collectors. Finally, this article will address how the new FCC rules increase the dangers in making autodialed debt collection calls.<\/p>\r\n\r\n

\r\n<\/a>III. The TCPA in Florida Before the FCC\u2019S July 2015 Rules\r\n<\/h2>\r\n

\r\n<\/a>A. Elements of a TCPA Claim\r\n<\/h3>\r\n\r\n

<\/a>Though the TCPA creates causes of action for parties who have received junk faxes<\/q> and landline calls, the most prominent cause of action that applies to debt collections is the prohibition on making nonconsensual autodialed calls to a cell phone. The statute provides that it shall be unlawful:<\/p>\r\n\r\n

\r\n(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice \u2014\r\n<\/blockquote>\r\n
\r\n(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.8<\/a> <\/span> 8 <\/span>47 U.S.C. \u00a7 227(b)(1)(A)(iii)<\/a> (2012).<\/span><\/sup>\r\n<\/blockquote>\r\n\r\n

<\/a>Thus, a successful claim must demonstrate:<\/p>\r\n\r\n

    \r\n
  1. \r\na call, \r\n<\/li>\r\n
  2. \r\nusing an automatic dialing system or prerecorded voice, \r\n<\/li>\r\n
  3. \r\nto a cell phone,\r\n<\/li>\r\n
  4. \r\nwithout prior consent. \r\n<\/li>\r\n\r\n<\/ol>\r\n\r\n

    <\/a>As increasing numbers of Americans give up their land lines in favor of their cell phones, the potential to run afoul of this prohibition is expanding.<\/p>\r\n\r\n\r\n

    <\/a>The element that there be a call<\/q> to a cellular phone is largely self-explanatory and not ordinarily in dispute by the time a plaintiff has already brought a TCPA claim. For the purposes of the TCPA, text messages also qualify as calls.<\/q>9<\/a> <\/span> 9 <\/span>Legg v. Voice Media Group, Inc.<\/i>, 20 F. Supp. 3d 1370, 1373<\/a> (S.D. Fla. 2014).<\/span><\/sup> Thus, the most important elements to a debt collector\u2019s defense of a TCPA action will be whether the system used to place the call qualifies as an autodialer, and whether the customer gave consent to make an autodialed call.<\/p>\r\n\r\n\r\n

    <\/a>Because the use of an autodialer is an element of the cause of action, a debt collector can avoid this type of TCPA claim altogether by having a customer representative contact debtors by entering each number into a telephone by hand. Of course, this option will increase operating costs by necessitating hiring and training additional customer representatives to place the same volume of calls.<\/p>\r\n\r\n

    \r\n<\/a>B. Automatic Telephone Dialing System\r\n<\/h3>\r\n\r\n

    <\/a>The TCPA defines an automatic telephone dialing system<\/q> as equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.<\/q>10<\/a> <\/span> 10 <\/span>47 U.S.C. \u00a7 227(a)(1)<\/a> (2012).<\/span><\/sup> The statutory inclusion of random or sequential number generators betrays the TCPA\u2019s original purpose to target telemarketers. However, the FCC and Florida federal courts applying the statute have not restricted liability to these limited call systems. As one court has stated, the key feature of an ATDS is the capacity to dial numbers without human intervention.<\/q>11<\/a> <\/span> 11 <\/span>Wilcox v. Green Tree Servicing, LLC<\/i>, No. 8:14-CV-1681-T-24 TGW, 2015 WL 2092671<\/a>, at *5 (M.D. Fla. 2015).<\/span><\/sup> Note that the statutory language focuses on the capacity<\/em> of the device.<\/p>\r\n\r\n\r\n

    <\/a>Thus, technology that qualifies as an autodialer also encompasses systems that automatically call numbers from a pre-programmed list,12<\/a> <\/span> 12 <\/span>Lardner v. Diversified Consultants Inc.<\/i>, 17 F. Supp. 3d 1215, 1222-23<\/a> (S.D. Fla. 2014).<\/span><\/sup> and predictive dialers,<\/q> which call numbers from a list in a way that predicts when a customer representative may be available to take the call.13<\/a> <\/span> 13 <\/span>Legg v. Voice Media Group, Inc.<\/i>, 20 F. Supp. 3d 1370, 1375<\/a> (S.D. Fla. 2014).<\/span><\/sup> These systems also happen to be the best way for debt collectors to reach customers who have given their telephone number to a retailer for potential collection purposes.<\/p>\r\n\r\n\r\n

    <\/a>Without the benefit of discovery to reveal a caller\u2019s procedure or software, the call recipient has no way to know for sure whether the debt collector is using an autodialer. At least one federal court has held that the bare allegation that defendant used an autodialer is grounds for dismissal.14<\/a> <\/span> 14 <\/span>Hunter v. Diversified Consultants, Inc.<\/i>, Case No. No. 8:14-CV-2198-T-30TGW<\/a> (M.D. Fla. Nov. 26, 2014).<\/span><\/sup> However, autodialed calls often contain telltale signs that debtors may plead to reach discovery and gain more information about the debt collector\u2019s call procedures. From the debtor\u2019s perspective, some of the hallmarks of an autodialer are as follows:<\/p>\r\n\r\n