3 Experts & 10 Questions from TCN’s TCPA Litigation Defense Webinar
Any collections agency can potentially be hit with TCPA litigation. But there are ways to defend yourself.
Recently, TCN partnered with Accounts Recovery to host a webinar called Defending Against TCPA Lawsuits.
It featured a trio of legal experts who provided many tips for fighting TCPA litigation:
- David Linares, chief compliance officer, DCI. He’s well-versed in the regulatory and legal landscape as well as operations and its challenges, having lead teams in both realms.
- Judd Peak, chief compliance officer and general counsel, Frost-Arnett Company. He ensures that the compliance program aligns with the overall corporate strategy, business plan, and code of ethics at Frost-Arnett.
- Nicole Strickler, shareholder and partner, Messer Strickler Ltd. She focuses her practice in the defense of consumer litigation, including the FDCPA, Fair Credit Reporting Act, TCPA, and the Illinois Collections Agency Act.
We decided to summarize the key points from the webinar so collection agencies can implement strategies to protect themselves from TCPA litigation. Download the full, hour-long webinar here.
Below we list the 10 most important questions from the webinar and the participants top answers, all so agencies can see the key takeaways for protecting their organization.
1. In What Areas Are Collection Agencies Most Vulnerable When It Comes to Complying with the TCPA?
Judd:
The main challenge or vulnerability I see is in the varying jurisdictions, with different standards, different interpretations of the TCPA, specifically, what constitutes an automated telephonic dialing system (ATDS). The vulnerability is trying not to mess something up when it’s very uncertain, very complicated.
David:
It’s a continuous minefield. There’s no easy way out, it’s just something we have to monitor pretty closely and consistently.
2. How Do You Go About Monitoring [New Legislation and Rulings]? Are You Reading News Sites or Keeping up with What Your Legal Counsel Says?
Judd:
It’s a little bit of both. There’s no such thing as information overload when it comes to TCPA because it’s challenged so often. The worst thing you can do when it comes to TCPA – or any regulation for that matter – is to be in the dark, because your vulnerability builds as you stay in the dark.
Nicole:
You have to keep abreast of where the [legal] cases are going and if there’s a change. The best way to do that is through the industry trade organizations and publications like this webinar.
When you’re thinking about your system and you’re thinking about your compliance policies, a lot of it comes down to consent. Are you capturing consent? How are you doing it? The industry is getting better at it and a lot of creditors are getting better at it by putting the right language in their agreements about the method by which they and their assignees contact the consumers. Documenting revocations. Stuff like that overall helps limit the potential for class liability.
3. How Long Do You Sit and Wait Before Making Decisions About Changing Your Compliance Policies?
Judd:
It depends. I would certainly wait longer than a week or a month before you do any major capital expenditure exchange. If you’re going to change your dialing system because of what 3 judges in San Francisco might have ruled a couple months ago, that’s a bit of an extreme reaction.
But you could tweak your dialing, or have 2 systems, and one of them is more conservative than the other as far as TCPA compliance goes. That could be a reasonable switch. Don’t do anything that you would have to undo at some point in the future.
4. What Recommendations Would You Give to Collection Agencies in Terms of Adapting Their Business?
Judd:
Prior consent is a TCPA get-out-of-jail free card. If you’re obtaining express consent from the consumer to dial them, it doesn’t matter what technology you use to do that.
5. Is This a Good Time to Consider Alternative Communication Methods Such as Text Messaging, Email Mail, or “Direct Drop” Voicemails, as Opposed to Making Phone Calls?
Nicole:
The key is that there are ways to comply with these alternative technologies, and my feeling is that a lot of companies believe that email and text message are the communications most likely to reach the younger subset of the population like millennials, so its key to use them regardless of the current landscape of the TCPA.
The main thing to keep in mind when you’re looking at these types of technologies is to develop your compliance program. For example, New York has specific consent requirements for email and their rules state these things that you have to do if you’re going to be emailing consumers as a debt collector.
For text messages, it’s been pretty much universally accepted in the courts that a text is a call, and the FCC agrees.
With direct drop voicemails, there are cases out there that have held that the direct drop voicemail is a call. It’s an ongoing process of keeping updated with what the rules are and how to stay compliant.
Sometimes people are thinking about the compliance program after they’re using the technology and it’s not something you want to do in retrospect. It’s something you want to do first.
Judd:
They are important to reach a broader spectrum of consumers, especially those who don’t answer their phone, but they present their own challenges. TCPA should not be the primary reason why you switch communications channels.
They need to stand on their own to the extent that they work for you strategically. Text messages are subject to the TCPA just like any calls to mobile cellphones. So that’s not a switch in order to be TCPA compliant. you’re going to have to develop those technologies because for example, they help get consumers on the phone to resolve their accounts. Those would be the factors that would weigh more heavily in the use of alternate channels rather than just trying to avoid liability under the TCPA.
6. We’ve Talked About Consent, How Do You Integrate a Culture of Consent into Your Scripts or into Your Conversations That Your Collectors Are Having with Individuals?
Judd:
After the initial validation letter is sent, then maybe you get a first response if the consumer calls in from that letter, then that’s a good opportunity for you to try to obtain that express consent to call in the future or send text messages or what have you.
The best way to make sure you’re documenting all this is to make sure your calls are recorded. If you have a recording of a consumer giving express authorization to use an automated telephone dialing system or to receive text messages, make sure you maintain the call recording during the lifespan of the account.
Nicole:
If you build consent into your scripts correctly, it can serve as quite the tool in defeating the class action if your policy or procedure is, every time the collector is speaking to the consumer they say something to the effect of “Is this a good number to call you on?” and the consumer says “yes.”
Building that script into your policy can serve as a nice defense tool because, for class action context, if I can provide that type of evidence to the consumer attorney to say, “Hey, maybe on this one-off call or account we didn’t have consent, but let me tell you what our policy and procedure is and here’s a bunch of examples of us using it over the past X amount of time, so you’re never going to get class certification because this is a one-off, this isn’t a pattern or practice of calling without consent.”
7. Is Consent Just a One-Time Thing – You Get It and Hold on to It Until They Revoke It – or Is It Something You’re Continually Trying to Ask for Every Time You’re in Touch with Them?
Judd:
You want to make sure that the specific language you’re using to obtain consent is forward-looking, so that consent will last for future communications, even with different telephone numbers that this consumer might obtain. Make sure it’s broad enough for future situations.
Nicole:
The best type of consent is something informal to the extent of “Is this a good number to contact you on?”
8. The Number of TCPA Lawsuits Is down 14% from Last Year, Is That a Trend You Expect to Continue?
Nicole:
That’s probably a result of people using the right technologies that comply with TCPA.
9. Does That Mean TCPA Will Become Less and Less of a Concern and It Will Fade Away?
Dave:
I think so – as long as technology continues to adapt.
10. Parting Words of Wisdom
Dave:
There are 2 common themes in TCPA pre-litigation claims: human intervention and dialing with an ATDS.
Make sure your answer times are very short so it doesn’t lead a consumer to believe they were dialed by an automated system. Usually, when we construe that, those claims go away very quickly.
Judd:
2 Key takeaways.
- Make sure you’re using dialing technology that’s TCPA compliant and vetted by multiple courts and jurisdictions.
- Make sure you don’t do anything to modify or corrupt it. You don’t want to change the nature of the system to change its capacity.
And hammer home the prior express consent or implied consent. Most of the claims are not in lawsuits but in pre-litigation demands. The best way to make them go away is to show that the technology used to dial the client has already been analyzed and deemed to be compliant. And show that the client has already given consent for you to call them. This helps claims like this go away without having to write a big check.
Nicole:
Keep educating yourself about what’s going on. Find your person to bounce ideas off of. Make sure you’re keeping yourself aware of the stuff that’s coming out, like court decisions. It’s an ever-changing compliance system.
How to Stay TCPA Compliant
There’s no doubt that TCPA compliance is the one most call centers worry about it. It’s certainly the most relevant.
But it’s difficult to find an all-in-one guide that walks you through each regulation step-by-step and helps call centers implement the correct policies to remain compliant.
Which is why we created The Complete Guide to TCPA and included a Compliance Checklist for call centers. Go ahead and download your free copy of these resources today.