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Part 2: How Could the New Administration Affect Debt Collection and TCPA Compliance?

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Darrin Bird

Chief Operating Officer

In our previous post, we discussed how net neutrality and privacy laws could affect call centers and call center technology, including cloud-based call center platforms. This week, we take a closer look at debt collection and TCPA compliance. Could the new administration affect them?

A distinct possibility exists. Ajit Pai, the acting Federal Communications Commission (FCC) Chairman, opposes the current, broad reading of the TCPA. The new administration maintains a pro-business stance, too, which could either reduce the “expansiveness” of the TCPA or, at the very least, provide some much-needed clarification.

But is TCPA compliance such a big deal? If your business collects on bad debt or regularly communicates with customers, you know that it is. It can make or break your business.

What is the TCPA?

The Telephone Consumer Protection Act, or TCPA, was enacted in 1991 to protect consumers from harassing telemarketers and robocalling. The intent was good, but the follow-through remains questionable. Consumers are protected, somewhat, but it sometimes happens at the expense of businesses’ health, reputation, and profitability.

Recent legislation on the TCPA, including the 2015 omnibus ruling, makes it difficult for debt collection agencies and related entities to conduct lawful business with consumers. The ruling aimed to safeguard consumers from unwanted phone calls and texts on their mobile phones. However, it has more or less resulted in misunderstandings, confusion, and a free-for-all of consumer-driven complaints and lawsuits.

How Big is the TCPA Problem for Consumers?

The Consumer Federation of America regularly asks United States consumers about their top complaints. The latest results, published mid-summer 2015, report that billing disputes with utility companies rank third. Credit and debt collection ranks fourth.

Further, the District of Columbia Attorney General’s Office says that debt collection was one of their biggest problems in 2015. Debt collectors, often fake, threatened consumers with arrest; called them at home and work; and even contacted friends and relatives. Perhaps scarier, though, is the amount of personally identifying information fake debt collectors have on hand. According to the D.C. office, the false collectors often knew Social Security numbers, banking information, and work histories.

How Big is the TCPA Problem for Businesses?

The answer to that is BIG. TCPA lawsuits continue to increase year-over-year, perhaps due to technology evolutions and broader interpretations of the TCPA. In 2007, the number came to a measly 14. 2016 saw almost 5,000 cases, up from 3,687 suits in 2015.

The payouts for those claims can be huge; Adonis Hoffman, contributor at The Hill, sarcastically asks if the TCPA means “Total Cash for Plaintiffs” attorneys. He says, “The TCPA is a strict liability statute. This means a single misstep, however well intended, can result in a violation. […] This drop-dead aspect of the TCPA has found special favor with aggressive plaintiffs’ attorneys who have exploited the loopholes to reap extraordinary financial gain.”

Businesses have persistently asked the FCC for more clear-cut guidelines, but the FCC’s ruling in 2015 offered little, if any, clarification. Ambiguity surrounding autodialers and robocalling continues. The ruling also places greater restrictions upon text messages and defines “party” as a subscriber or recipient of calls—not the “intended party” that businesses and organizations hoped for.

How Could the TCPA Change in 2017?

The new TCPA parameters have not gone uncontested. The ACA International, in collaboration with other companies and agencies, brought an appeal to the courts in fall 2016. A decision could be made in 2017, which might bring relief to businesses attempting to conduct regular business or help customers and patients pay down debt.

In addition, the new administration appears supportive of businesses and their unique needs and challenges. Chairman Pai seems to echo the sentiment. Both factors could bring revisions to the TCPA and potentially put the statute under the Federal Trade Commission’s (FTC) purview.

If either scenario were to happen, some sort of balance between consumers and businesses could be possible. A TCPA with clearer definitions about autodialers and debt collection practices would allow businesses to use call center software without incurring a customer’s or attorney’s ire. And, a TCPA managed by the FTC could improve consumer privacy—the institution, after all, has been charged with protecting consumers and their rights for many years running.

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