Archives for May 2017

Yesterday, the United States Court of Appeals for the District of Columbia Circuit heard oral arguments in a case that could dramatically impact the future of the Consumer Financial Protection Bureau (CFPB). The case is PHH Corp. v. Consumer Financial Protection Bureau, United States Court of Appeals, D.C. Cir., Case No. 15-cv-01177. 

Background

insideARM has published numerous articles about the case. PHH, a mortgage company in Mount Laurel, N.J., wanted the U.S. Court of Appeals for the District of Columbia Circuit to vacate a June 2015 enforcement ruling by the CFPB that said PHH violated anti-kickback provisions in Section 8(a) of the Real Estate Settlement Procedures Act (RESPA) and had to give up $109 million in what CFPB Director Cordray had said were ill-gotten mortgage reinsurance premiums. 

Our April 19, 2016 article described the case and the arguments presented.

Our October 11, 2016 article covered the original decision in the Court of Appeals. Among other issues, the case called into question the CFPB’s structure and authority.

On October 12, 2016 we published an article by Kelly Knepper-Stephens that discussed the potential impact the decision could have on the CFPB’s enforcement powers.    

In November, the CFPB filed a petition with the D.C. Circuit asking it to grant a rehearing en banc of its decision.

On January 4, 2017 insideARM published an excellent article by Barbara Mishkin from the Ballard Spahr LLP law firm that described the flurry of legal activity that occurred after the CFPB filed its petition for rehearing en banc. 

On February 16, 2017 insideARM wrote about the D.C. circuit granting the request for rehearing. 

Since the change in administration the “players” in this saga have changed. The CFPB is taking one position. Obviously, PHH is taking the opposite position. But the new player is the Department of Justice (DOJ). Under the Trump administration DOJ is now siding with PHH and taking the position opposite to the CFPB. See the insideARM March 22, 2017 article on the DOJ position. 

The Oral Arguments 

The arguments presented to the full 11-judge panel centered around whether the CFPB’s independent, single-director structure runs afoul of the Constitution. To listen to the complete hearing, click here. The court allocates specific time limits to the parties. PHH was allocated 30 minutes. The DOJ was allocated 10 minutes. The CFPB was allocated 30 minutes. 

PHH, was represented by Gibson, Dunn & Crutcher partner Theodore Olson. Mr. Olson spoke first. Olson sought to distinguish the CFPB from other federal commissions. As is often the case with appellate arguments, Mr. Olson was not allowed to stay “on script” for long. The judges immediately began peppering him with questions. Olson argued the biggest problem with the CFPB structure is that the CFPB’s power is vested in one person as opposed to being distributed among several people as in agencies such as the Federal Trade Commission (FTC). 

Attorney Hashim M. Mooppan represented the Department of Justice (DOJ). He spoke next. Moopan was immediately questioned by the judges regarding the difference in impact on executive power between a multi-member commission and a single director agency. He was specifically asked if/how the CFPB single director structure differs from the Social Security Administration (SSA), where the single head of that agency “controls 24% of the national budget and probably ½ to ¾ of the population.”  Mr. Mooppan was never permitted to answer that question before other judges asked additional questions. 

Mooppan was also asked about the CFPB exemption from the appropriation/budget process. But, he responded by saying that “in terms of the Article II analysis they (DOJ) are not relying on the exemption from the budgetary process. Despite the 10 minutes originally allocated to the DOJ, the judges asked Mr. Moopan so many questions that his portion of the argument took over 25 minutes of the court’s time.

The CFPB was represented by CFPB attorney Lawrence Demille-Wagman. He began his argument by stating that the CFPB position is that after the expiration of the Director’s 5-year term the Director could hold over until a new Director is appointed. But, he noted that Director Cordray would lose his “for cause” protection after his term expires. 

Questions directed to Demille-Wagman focused on the lack of the ability of a new President to appoint a new director for the CFPB when the President typically appoints other commission chairpersons immediately after the start of a new administration.  

It is difficult to predict where the judges stand by simply listening to their questions. However, the questions suggested that there is a split of opinions in the full panel. Two words best described the hearing: Mixed Messages. 

insideARM will continue to monitor this case. A decision from the court is not expected for several months.

 

 

The White House released its 2018 budget proposal to Congress this week. Buried (the second to last item) in a 171-page Major Savings and Reforms supplement is one half-page that addresses the CFPB. The section is called, Restructure the Consumer Financial Protection Bureau. Here’s what it says:

The Budget proposes to restructure the Consumer Financial Protection Bureau (CFPB), limit the Agency’s mandatory funding in 2018, and provide discretionary appropriations to fund the Agency beginning in 2019.

 

Justification 

Restructuring the CFPB to refocus its efforts on enforcing enacted consumer protection laws is a necessary first step to scale back harmful regulatory impositions and prevent future regulatory hurdles that stunt economic growth and ultimately hurt the consumers that CFPB was originally created to protect. Furthermore, subjecting the reformed Agency to the appropriations process would provide the oversight necessary to impose financial discipline and prevent future overreach of the Agency into consumer advocacy and activism.

insideARM Perspective

With a current budget of approximately $600 million, this proposal essentially guts the agency by 2019. However, the CFPB’s budget isn’t currently controlled by Congress, so the cuts shown above can’t practically be made unless there is a structural change to how the bureau is funded before the end of this fiscal year. Still, it’s a clear sign of what the President thinks of the currently independent agency.

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The Federal Trade Commission (FTC) announced yesterday that, together with the State of Florida, it requested that a federal court temporarily halt a massive phony debt relief operation that bilked tens of millions of dollars from financially strapped consumers, including the elderly and disabled.

According to the FTC and Florida, Jeremy Lee Marcus, Craig Davis Smith and Yisbet Segrea, through 11 companies, got people to pay hundreds or thousands of dollars a month by falsely promising they would pay, settle, or obtain dismissals of consumers’ debts and improve their credit. Over time, victims found their debts unpaid, their accounts in default, and their credit scores severely damaged – some were sued by their creditors, and some were forced into bankruptcy.

The FTC and Florida allege that the defendants falsely claimed non-profit status to appear more credible and legitimate. The defendants then promised consumers guaranteed debt consolidation loans for tens of thousands of dollars with attractive interest rates and significantly lower monthly payments than consumers were paying their creditors. Once consumers agreed to the purported loan, the defendants almost immediately debited the consumers’ bank accounts for an initial loan “repayment” or a processing fee, and then kept debiting consumers’ bank accounts each month, in amounts ranging from $200 to $1,000 or more. The FTC and Florida charge that the defendants, despite taking these monthly payments, failed to extend consumers the promised debt consolidation loans.

The defendants also called people who were already enrolled with debt relief providers claiming they were taking over the servicing of those accounts and falsely claiming they would provide the same or similar services. Many of their victims had worked for years with their previous debt relief providers and had saved money in escrow accounts for use in negotiating with creditors. The defendants told these consumers to transfer their escrow money to defendants, and then debited up to $1,000 each month from the consumers’ bank accounts. Contrary to the defendants’ promises, people got little to nothing for their money and ended up in worse financial positions.

Marcus, Smith, Segrea and their companies are charged with violating the FTC Act, the FTC’s Telemarketing Sales Rule, and the Florida Deceptive and Unfair Trade Practices Act.

The corporate defendants are Financial Freedom National Inc., formerly known as (f/k/a) Institute for Financial Freedom Inc. and Marine Career Institute Sea Frontiers Inc., also doing business as (d/b/a) 321 Loans, Instahelp America Inc., Helping America Group, United Financial Support, Breeze Financial Solutions, 321Financial Education, Credit Health Plan, Credit Specialists of America, American Advocacy Alliance and Associated Administrative Services; 321Loans Inc., f/k/a 321 Loans Inc., also d/b/a 321Financial Inc.; Instahelp America Inc, f/k/a Helping America Team Inc., also d/b/a Helping America Group; Helping America Group LLC, f/k/a Helping America Group Inc.; Breeze Financial Solutions Inc., also d/b/a Credit Health Plan and Credit Maximizing Program; US Legal Club LLC; Active Debt Solutions LLC, f/k/a Active Debt Solutions Inc., also d/b/a Guardian Legal Center; Guardian LG LLC, also d/b/a Guardian Legal Group; American Credit Security LLC, f/k/a American Credit Shield LLC; Paralegal Support Group LLC, f/k/a Paralegal Staff Support LLC; and Associated Administrative Services LLC, also d/b/a Jobfax.

Relief defendants that profited from the scheme are JLMJP Pompano LLC; 1609 Belmont Place LLC; 16 S H Street Lake Worth LLC; 17866 Lake Azure Way Boca LLC; 114 Southwest 2^nd Street DBF LLC; 110 Glouchester St. LLC; 72 SE 6^th Ave. LLC; Fast Pace 69 LLC; Strategic Acquisitions TWO LLC; Halfway International LLC, also d/b/a 16 H.S. Street 12Plex LLC, 311 SE 3^rd St. LLC, 412 Bayfront Drive LLC, 110 Glouchester St. LLC, 72 SE 6^th Ave. LLC, 114 SW 2^nd Street JM LLC, 8209 Desmond Drive LLC, and HLFP LLC; Halfway NV LLC, also d/b/a Halfpay International LLC; and Nantucket Cove of Illinois LLC.

The Commission vote approving the complaint was 2-0. The U.S. District Court for the Southern District of Florida entered a temporary restraining order against the defendants on May 9, 2017, followed by a preliminary injunction on May 17, 2017.

insideARM Perspective

insideARM applauds actions taken against firms whose business model is rooted in deception. The allegations suggest deception aimed at the most vulernable. The alleged activity, if true, is despicable. Similarly, last year we reported that the CFPB took action against World Law Group and several affiliates for taking millions in up-front fees for legal services that never materialized.

Debt settlement and debt relief options are everywhere. Turn on a radio or TV and you are bound to hear multiple commercials adertising these services. How is a consumer to differentiate a legitimate company from a scam? insideARM would suggest that consumers thinking about debt settlement, go to www.ftc.gov and search for “Debt Relief Services” before consulting with any debt settlement or debt relief company.

CHATTANOOGA, Tenn. – During Collectors Challenge month in April, employees of North American Credit Services (NACS) in Chattanooga, Tennessee found many creative ways to raise $1,772, including NACS annual donor match for a grand fundraising total of $3,544, all in support of consumer financial literacy programs. “Our employees understand that it is important that we provide leadership and compassion in assisting consumers in the challenges often encountered in dealing with debt.” shared Dallas S. Bunton, Sr., CEO and Chairman NACS and Medical Services, Inc. “Providing tools and places of education provide hope and clarity for all involved.”                    

NACS employees participated in campus fundraising activities such as the Collectors Charity Challenge Hot Dog Picnic and People’s Choice Chili Cook-Off Competition as well as through offering casual dress days. For a $3 ticket donation, employees were provided a hot dog picnic pack for the picnic and a $5 donation for the chili cook-off allowed employees the opportunity to cast a personal vote for the top employee chili chef. A dozen employees entered the competition to support the great cause of scholarship opportunities through the ACA International Education Foundation. Employees also made donations to dress casual in the office for up to 30 days and chances to win drawings.

Money raised from the month-long Collectors Charity Challenge events allows the ACA International Education Foundation  to expand and increase financial literacy initiatives through research, education, job training, and public advocacy.

To learn more about the ACA International Education Foundation (ACAEF) charity or North American Credit Services, an internationally certified Professional Practices Management System (PPMS) accredited agency visit www.NACScom.com.

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COLLINGSWOOD, N.J. — HS Financial Group, LLC (HSF) is pleased to announce it has surpassed the five-year mark as a subcontractor on the Department of Education’s (ED) Private Collection Agency (PCA) contract.  Working for ED PCA GC Services Limited Partnership since 2011, the company has recovered more than $100 million in defaulted student loans while helping nearly 5,000 borrowers come out of default to continue on the path to fully repairing their credit.  In that time, the company has also maintained a consistent compliance rating of 96% to 98% in call reviews.

“We are pleased to reach this milestone in longevity as an ED PCA subcontractor and could only have achieved it through the hard work and diligence of our dedicated and professional workforce,” stated Timothy Sullivan, a U.S. Navy veteran and attorney who owns and operates the firm, continuing, “And we look forward to finding the right partner among restricted PCAs to help with the work on that contract initiative as well.”

When the current uncertainty surrounding the ED PCA program reaches a resolution, HSF will be well suited to help any restricted, small-business PCA meet its subcontracting goals in the small business category.

HSF is a member of the Fed Cetera Network, and was awarded the 2016 Robert J. Prince Award for outstanding performance as a subcontractor member of the Network. https://insidearm.com/news/00041777-hs-financial-group-wins-award-for-federal/. The award is given by Fed Cetera to a small business subcontractor whose exceptional performance, provided in a compliant manner, has had a substantial impact on performance among Federal small business subcontractors in the previous year.

About HS Financial Group

HSF and its affiliated creditors’ rights law firm are performance-driven, certified Veteran-Owned Small Businesses that have earned a reputation for Professional, Ethical, and Excellent debt collection services. Based in Cleveland, Ohio, HSF provides fully-integrated accounts receivable management solutions to a variety of businesses, higher education institutions, and government entities.  Since 2000, our team of collection professionals has delivered superior service to our clients.  We strive for quick and efficient recovery of your delinquent accounts and we maintain a personal working relationship with every client, and will do the same with you.  Click here to learn more. www.hsfgroup.net

About Fed Cetera

Fed Cetera helps companies in the collection industry pursue opportunities with the Federal government.  Federal PCAs have strong incentives to give a portion of their core collections work to qualified small businesses.  Companies working with Fed Cetera to pursue Federal opportunities recently surpassed $70,000,000 in total billings for their work provided as prime contractors for ED and subcontractors to ED PCAs. Click here to learn more. 

PHOENIX, Ariz. –BillingTree®, the leading payment technology provider today announced a newly formed partnership with Renkim Corp. offering Payrazr Marketplace and BillingTree clients access to paper and/or email invoicing and statements, mail tracking, EBPP and more. The outsourced service enables companies to expand their communications through Renkim’s capabilities.                                   

Renkim is the first new partner to be offered within the new ‘Outside Services’ category on the Payrazr Marketplace. As a leader in their space, Renkim is recognized for their ability to handle financial and mission-critical documents at credit, collection, healthcare, insurance, automotive and utility companies located throughout North America. 

“Renkim is excited to join BillingTree’s Payrazr Marketplace as the inaugural partner offering,” said Rob Augg, Renkim’s VP of Sales. “Sharing our company’s expertise in print, mail and e-billing combined with BillingTree’s payments knowledge and technology will be a true value-add to both our customers and theirs, as well as future clients” 

“Our goal is to expand the value and reach of BillingTree’s Payrazr Marketplace, giving clients access to world class products developed in-house plus services offered by our partners. The addition of Renkim to this new Outside Services Category offers clients more tools to free up staff resources for other critical business tasks.” said Edgars Sturans, CEO at BillingTree.  “BillingTree will continue to review potential partnerships that add value to our customers and make it easier for them to engage with our partners”. 

To learn more about Renkim services or inquire about having your solution represented in the Payrazr Marketplace Outside Services Category visit www.Payarzr.com   

About Renkim

Renkim, founded in 1982 is employee-owned and specializes in the distribution of mission critical financial messages via paper and electronic channels. Our client base and experience are within the healthcare, ARM, insurance, financial, consumer media and automotive sectors. Renkim360 client portal provides clients with archival access for all paper and electronic messages, mail track, eNotice click tactics and reporting. Our commitment is client focused, providing Level 1 service- Accuracy and On-Time, with strict adherence to compliancy consisting of Hitech/HIPAA, PCI, GLBA, FISMA and SOC Type II. Contact: Rob Augg, Vice President, Sales 248-981-4676. 

About BillingTree

BillingTree® is the leading provider of integrated payments solutions to the healthcare, ARM and financial services industry verticals. Through its technology-enabled suite of products and services, BillingTree enables organizations to increase efficiency and decrease the costs of payment processing while adhering to compliance regulations. Leveraging more than a decade of market experience, BillingTree is dedicated to growing payments with technology through an integrated omni-channel offering, a suite of proprietary products and value-added services, and a Company-wide focus on delivering extraordinary customer service.

A New York U.S. District Court recently granted summary judgment in favor of defendant Rite Aid Headquarters Corporation in a Telephone Consumer Protection Act (TCPA) class action. Healthcare providers can take away an important, preventive blueprint to avoid litigation.

A copy of the court’s order can be found here.

Before the Court was the Plaintiffs motion for class certification, under Federal Rule of Civil Procedure 23, and the Defendant’s motion for summary judgment or, in the alternative, partial summary judgment. 

Editor’s Note:  A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.

The court’s opinion and order found that, since the flu shot reminder calls in the complaint were “health related,” Rite Aid did not have an obligation under the TCPA to obtain express written consent. However, lest providers think that any communication they send will be exempt from the long arm of the TCPA, this case still holds some cautionary pivot points that providers would do well to consider in their communications with patients, former patients and prospective patients.

Background

In Zani v. Rite Aid Headquarters Corp., 14-cv-9701, plaintiff Robert Zani alleged that Rite Aid violated the TCPA, 47 U.S.C. § 227 by placing a recorded flu shot reminder to the cell phones of the drug store’s patrons who had previously received the shot at Rite Aid Stores. At the time Plaintiff Zani received his shot, it was undisputed that he provided Rite Aid with his cell number, and had also consented in writing more than once to be contacted by Rite Aid regarding “refill reminders . . . or health related benefits and services.”

Rite Aid argued that not only had Zani consented to the calls, he had provided his number in connection with his previous flu shot. Plus, they argued, the calls fell well within the broad “Health Care Rule,” 47 CFR 64.1200(a)(2), adopted under the TCPA in 2013, under which “health care messages” are exempt from written consent requirements for prerecorded and autodialed calls made to cell phones.

Decision

The court agreed with Rite Aid and found three factors present in the undisputed facts of this case germane to defining the scope of the Health Care Rule: (1) The call concerned a product or service that is health related, which would include administration of medication; (2) The call was made to a patient with whom the health care provider had an established health care relationship; and (3) The call concerned the individual health care needs of the patient recipient. (The prerecorded call contained a reference to a special flu shot for those over 65, and Plaintiff Zani was over 65).

Although these factors were sufficient, the court suggested they were not always necessary to determine whether a call that delivered a healthcare message—albeit a marketing call—was subject to the Health Care Rule. In other words, because the call was deemed a healthcare call, Zani’s argument that it constituted “marketing” was void, because the Health Care Rule applies to any message, whether marketing or not, that is otherwise health related.

Since Zani had provided Rite Aid consent before the call was made, and the call did not cause Zani to incur a cost from his cell provider, and was not counted against any plan limits that applied to Zani’s wireless account, the court granted summary judgment and denied his motion for class certification.

insideARM Perspective

Given that the scope of the Health Care Rule has long arms and is open to judicial interpretation, this decision provides some good structure and offers the healthcare provider community some clarity on the application of the exemption. Even with a good outcome for providers, the case also makes us bristle at the effects that a similar law suit could have on, say, a small healthcare provider without Rite Aid’s deep pockets. Litigation of this nature could be economically devastating.

Far beyond the purview of a drugstore pharmacy chain, the types of calls a healthcare provider could potentially deploy (for which there is exigency and a health care treatment purpose) are more numerous, and could include appointment and exam confirmations and reminders, calls about wellness check-ups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription notifications and home health care instructions.

It’s great news that Zani v. Rite Aid establishes that while some of these calls could also include a marketing intent (like vaccine reminder calls), once they satisfy the conditions of the Health Care Rule exemption, prior express consent is not required to place them.

Consent protocols seem like cheap insurance

For all the risk management issues providers cannot directly control, developing a clean consent/withdrawal of consent policy is not one of them. Could healthcare providers, when requesting patient information, take pre-emptive steps to avoid potentially costly litigation centered on the issues argued in Zani?

Consider, at every point where patient information is collected, developing simple protocols that:

1. Establish consent, even if as a healthcare provider, you may not need it. Specifically request cell phone numbers and email addresses at all registration points. Disclose, in plain English, that furnishing the number or email address relays consent for the provider (and its vendors) to call or send messages (potentially automated/prerecorded or artificial voice) intended to service the relationship and the account, including informational healthcare and/or marketing communications.
2. Clearly define the terms of the consent period. Will the consent continue into perpetuity? Until specifically withdrawn? Will it terminate one year after the last account activity? Consider whether your technology infrastructure is capable of automatically weeding your call lists of inactive patient numbers.
3. Set forth a simple opt-out method, including an email address, a website and a snail mail address on all communications.

It’s entirely possible that these TCPA suits will die down once there is sufficient case law to guide the application of the Health Care Rule exemption. In the meantime, establishing policies that would fortify the defense of providers seems like a sound use of time and resources.

CALABASAS, Calif. — Earlier this month, Cedar Financial was graced with the opportunity to volunteer our time and energy with the MEND Poverty drive in Southern California. MEND Poverty was founded in the early 1970’s as a non-profit organization helping all members of the community living in poverty reestablish their self-reliance skills and begin to contribute as active members of society. MEND stands for the work they put forth – Meeting Each Need with Dignity. MEND provides emergency food, clothing, medical, vision, and dental care to hundreds of families in the surrounding areas in need. The most impressive element to the success at MEND is that over 94% of the amazing work they contribute to the community is volunteer work.  At the Pacoima MEND location, over 16,000 hours are donated each month from volunteers of all backgrounds, coming together to help put people first.

During our day with MEND, Cedar Financial staff were given a private tour of the facility, opening our eyes to how much work goes into giving back to the community. Some of the more fascinating aspects we observed were the relationships MEND has built with neighboring college universities and the option for students to gain credited hours in the medical, dental, and vision care fields towards their degrees. This relationship not only helps the students, but more importantly, gives community members access to vital healthcare services they would otherwise be unable to attain.

The staff of Cedar Financial were directed to the food and package facility at the MEND HQ to help prepare canned foods, soft drinks, and grains for a national food drive set to take place over the weekend. It was phenomenal to see all the resources the organization had in stock, however, the more we worked to prepare bags, the more it became very clear that there are never enough donations, either food or clothing, to help sustain the support MEND has been able to give. This experience showed our staff the importance of monthly food drives, donating used clothing, and even volunteering an hour or so to those who are less fortunate.

Learn how you can help by visiting www.MENDPOVERTY.org 

About Cedar Financial

Since 1991, Cedar Financial has strived to become a leader in domestic and international debt recovery.

Our mission is simple; to provide the most comprehensive and professional debt recovery services available to our clients. All this, while focusing on the unique challenges in your industry. Our industries include international and domestic debt collections in Education, Healthcare, Commercial, Government and Retail.

At Cedar, our goal is the same as yours, to negotiate and resolve disputes professionally and on-time. Cedar knows your customer relationships matter. Our online presence combined with current technologies and personnel education programs mean higher conversion rates and a more positive payment experience for your customers. Learn more at www.CedarFinancial.com

ST. GEORGE, Utah, — TCN, Inc., a leading provider of cloud-based call center technology for enterprises, contact centers, BPOs and collection agencies worldwide, announced today the launch of AgentSMS, a new SMS texting feature for its cloud-based contact center platform, TCN Platform 3.0. With AgentSMS, contact center agents and customer service professionals can instantly respond to customers’ needs, confirm appointments, send payment reminders and even alert individuals of emergencies via text messages. Fully integrated with TCN Platform 3.0’s business intelligence (BI) suite, AgentSMS enables businesses to engage customers more effectively, enhance communication and increase sales by implementing omni-channel strategies. 

A recent survey conducted by Pew Research Center found that 95 percent of Americans own cell phones, and 77 percent of cell phone owners own a smartphone.  The survey finds that texting is the most widely used and frequently used app on a cell phone with 97 percent of Americans using it at least once a day.  Studies have shown that Short Message Service (SMS) marketing has a 98 percent open rate, compared to email marketing with a 22 percent open rate. SMS has been proven to be a more effective and direct way to get a message to a customer. 

“AgentSMS is a highly effective communications tool, and we are confident that it will help businesses communicate with their customers in a more efficient and cost-effective way,” said Terrel Bird, CEO and co-founder of TCN. “AgentSMS is just one more tool we’ve added to our comprehensive call center suite to enhance our services, and we are committed to providing the best cloud-based contact center technology to our customers around the world.” 

With its pay-for-use pricing structure and the ability to distribute SMS messages domestically and internationally, TCN’s platform is suitable and scalable for businesses of all sizes. 

Key features of AgentSMS include:

• Business Intelligence (BI) — Offers customized reporting and data-driven feedback with the ability to view and evaluate the impact and progress of a campaign.
• No Send Limits — Instantly sends hundreds of thousands of 160-character text messages to customers around the globe at one time.
• SMS Responses — Issues a call back number for each SMS message sent, allowing the recipient to be directly connected to a contact center agent via phone call.
• SMS Codes — Equipped with the standard command codes (Stop, Yes, No, Confirm) for immediate responses to upcoming appointments and subscriptions.
• Omni Channel — Integrated with voice, texting and email campaigns to offer a comprehensive approach to outbound communication efforts.
• List Building — Scrub cell phone data to repurpose and build future SMS campaign lists.
• Customized — Offers an easy-to-use API, a variety of SMS message templates and outbound filter options. 

AgentSMS is built on top of TCN’s advanced cloud-based contact center suite, Platform 3.0, that eliminates the need for complicated hardware. The platform improves connectivity between agents and customers and increases efficiency without the need for additional staff. It provides industry-leading features such as predictive dialer, IVR, call recording and business intelligence. Its “always-on” cloud-based delivery model gives end-users the ability to quickly and easily scale and adjust to evolving business needs. 

To learn more about TCN’s AgentSMS, click here. 

About TCN

TCN is a leading provider of cloud-based call center technology for enterprises, contact centers, BPOs, and collection agencies worldwide. Founded in 1999, TCN combines a deep understanding of the needs of call center users with a highly affordable delivery model, ensuring immediate access to robust call center technology, such as predictive dialer, IVR, call recording, and business analytics required to optimize operations and adhere to TCPA regulations. Its “always-on” cloud-based delivery model provides customers with immediate access to the latest version of the TCN solution, as well as the ability to quickly and easily scale and adjust to evolving business needs. TCN serves various Fortune 500 companies and enterprises in multiple industries including newspaper, collection, education, healthcare, automotive, political, customer service, and marketing. For more information, visit http://www.tcnp3.com or follow on Twitter @tcn.

This article, co-authored by Allyson Baker, Peter S. Frechette, and Andrew T. Hernacki, previously appeared on the Venable blog, and is republished here with permission. This case is highlighted today in anticipation of oral arguments taking place tomorrow, May 24, in PHH Corp. v. Consumer Financial Protection Bureau.

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The Tenth Circuit has solidified a circuit split with the D.C. Circuit regarding the status and appointment of the Securities and Exchange Commission (SEC) administrative law judges (ALJ). A majority of the three-judge panel that heard the Bandimere case in December of 2016 ruled that ALJs are “inferior officers” under the Appointments Clause. As such, the ALJ should have been, but was not, constitutionally appointed, requiring the SEC’s judgment to be set aside. On May 3, 2017, a majority of the full Tenth Circuit declined to rehear the case en banc, with two judges dissenting.

In declining to change course, the Tenth Circuit remains split from the D.C. Circuit, which ruled in Raymond J. Lucia Companies, Inc. v. SEC that SEC ALJs are not “inferior officers” under the Appointments Clause. The split focuses primarily on differing applications of the Supreme Court’s decision in Freytag v. Commissioner of Internal Revenue — and is centered on whether courts should look to a broad array of factors contributing to the “exercise significant discretion” in “carrying out . . . important functions” (Tenth Circuit), or whether courts need primarily look to the ability to render final decisions (D.C. Circuit) when determining the status of agency personnel.

To date, argument surrounding ALJs’ status as “inferior officers” has centered on the SEC. However, as we noted previously, the D.C. Circuit has directly imported the Appointments Clause issue into Consumer Financial Protection Bureau (CFPB) jurisprudence, specifically requesting briefing on the “appropriate disposition” of the PHH Corp. case, if the en banc D.C. Circuit concludes that an SEC ALJ is an inferior officer rather than an employee.

Application of the SEC Appointments Clause issue from Lucia/Bandimere to the CFPB would revolve around the similarities between the administrative adjudicatory frameworks of the two agencies and the authorities wielded by each agencies’ ALJs. If the D.C. Circuit reverses course in Lucia, the court will need to compare the duties and discretion of SEC ALJs to those used by the CFPB.

In PHH, the ALJ Appointments Clause issue presents an additional (and perhaps alternative) constitutional question to the D.C. Circuit’s review of the panel’s ruling regarding the structure of the CFPB. Oral arguments for both Lucia and PHH are scheduled for May 24, 2017.