Archives for February 2020

On Friday afternoon, the Consumer Financial Protection Bureau (CFPB) released its long-awaited Supplemental Notice of Proposed Rulemaking (SNPRM) for time-barred debts. The CFPB first hinted that an SNPRM  was coming last year when it included a placeholder for time-barred debts in its full NPRM for debt collection, as well as when it launched a consumer survey for time-barred debt disclosures. As recently as December, the CFPB noted that the SNPRM would be coming “very early in 2020“—and now it is here.

The Proposed Disclosures

Following the path of certain states that already require time-barred debt disclosures, the CFPB has created three separate proposed disclosures that would be applied to applicable situations. First is the general time-barred disclosure, to be used on all time-barred debs:

The law limits how long you can be sued for a debt. Because of the age of this debt, we will not sue you for it.

Second, if the relevant state laws allow the statute of limitations to restart—discussed as “revival” in the SNPRM—then the debt collector must use the following in the disclosure:

The law limits how long you can be sued for a debt. If you do nothing or speak to us about this debt, we will not sue you to collect it. This is because the debt is too old. BUT if you make a payment, then we can sue you to collect it.

Third, if the applicable state laws allow revival through the consumer’s acknowledgment of the debt, then the following disclosure applies:

The law limits how long you can be sued for a debt. If you do nothing or speak to us about this debt, we will not sue you to collect it. This is because the debt is too old. BUT if you acknowledge in writing that you owe this debt, then we can sue you to collect it.

And, if both of the above scenarios revive the statute of limitations, there is a proposed disclosure that combines them:

The law limits how long you can be sued for a debt. If you do nothing or speak to us about this debt, we will not sue you to collect it. This is because the debt is too old. BUT if you make a payment or acknowledge in writing that you owe this debt, then we can sue you to collect it.

When to Provide the Disclosures

The disclosure must be provided in the initial communication with the consumer—including oral communications—as well as in the validation letter. If the debt was not time-barred at the time the debt collector began collection efforts but later becomes time-barred, the debt collector must provide the disclosure in the first communication after the debt becomes time-barred.

The SNPRM provides a “knows or should know” standard—rather than a strict liability standard—for debt collectors. In other words, if the debt collector knows or should know that the debt is time-barred, then it must provide the disclosure. If the debt collector didn’t know and shouldn’t have known that the debt was time-barred, then the debt collector must provide the disclosure after it becomes aware or should have become aware that the debt is time-barred. 

If the applicable state for the debt already requires a time-barred debt disclosure, the SNPRM states that the state-required disclosure can be placed on the reverse side of the page. We’re already thinking what you’re thinking, check out the iA Perspective below for more.

Comment Due Date

The SNPRM has not yet been published in the Federal Register. However, once it is, comments will be due 60 days after publication.

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insideARM Perspective

There are a few things to unpack here, we will just name a few.

Conflict with State Laws. The SNPRM notes that several states already provide a verbatim disclosure. In such situations, the CFPB’s disclosure should be on the front of the letter, while the state’s disclosure can be on the reverse side of the letter and still be in compliance with the rule. This causes two primary issues.

First, some states—like New York—require that their time-barred debt disclosure be placed on the front page of the letter. Per the SNPRM, this would already be deemed not in compliance. With all of the other validation notice requirements, there is simply no room on a standard letter-sized piece of paper to include all of the required information and two time-barred debt disclosures. Does this mean that, as a practical matter, the CFPB is effectively banning time-barred debt collections in New York?

Second, the SNRPM’s disclosure are extremely similar—if not almost identical—to the disclosures required by the “verbatim disclosure” states.  For example, states with revival statutes already require that the implications of payment or acknowledgment of the debt be included in their disclosure. What is the point of repetitive disclosures? It would seem more prudent to create an exception in the SNPRM for time-barred debts that are already subject to verbatim disclosure requirements by their applicable states, since the consumer is already on notice of the time-barred nature of the debt.

Jurisdictional Split for “Will Not Sue” and “Cannot Sue.” In the SNPRM, the CFPB mentions that it considered both a “will not sue” and “cannot sue” disclosure, finding that “will not sue” is sufficient. This would, hopefully, bring a close to a jurisdictional split on the issue. A few district courts—such as the Northern District of Illinois and the District of Utah—found that “will not sue” implies that the debt collector is choosing not to sue the consumer, rather than being prohibited from doing so by law. Other jurisdictions—such as the 9th Circuit Court of Appeals and the District of Colorado—found that “will not sue” is fine. 

Editor’s Note: We found this jurisdictional split information—including details about each case, and the fact that many of these decisions originate from cases filed by the same set of consumer attorneys—through just a couple of clicks in the iA Case Law Tracker.

There are several more observations—the least of which being how clunky and confusing the “if you do nothing or speak to us about this debt, we will not sue you” proposed disclosure is—but we’ll save those for the comment.

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

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With the ATDS picture slowly taking shape in TCPAWorld the newest battle surrounds Article III standing in the context of TCPA violations.

In order to assert standing to sue under the statute a Plaintiff must demonstrate–for each and every phone call folks–that the call caused “concrete” and “real world harm” that is “fairly traceable” to the Defendant’s conduct. A new decision out today in Drake v. Firstkey Homes, LLC, Case No. 19-cv-1746 (N.D. Ga. Feb. 21, 2020) explores the contours of both aspects of the standing inquiry. And–given the *ahem* creative arguments presented by the Defense– the decision is quite illuminating.  The opinion can be found here: Drake v. Firstkey

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Things start off well enough for the Defense in Drake. The Plaintiff’s first claim was that a pre-recorded voicemail left by the Defendant–yes, the case involved a single pre-recorded call leading to a putative nationwide class action–violated the TCPA delivery restrictions because it did not include an automated opt-out mechanism as required by the statute. Yet, as Defendant argued, Plaintiff never received a second call. So the absence of the opt-out mechanism could not have caused Plaintiff any harm. The Court agreed and concluded that the failure to include the opt-out mechanism was merely a procedural violation of the statute that amounted to zero real world harm. Claim dismissed.

So far so good.

But the Drake Court reached the opposite result on the issue of Article III harm resulting from the receipt of that same voicemail more broadly. Specifically, Plaintiff did not consent to the call and the Court found she was adequately injured by its receipt to justify the suit.

In reaching this conclusion, the Drake court analyzed the effect of both Salcedo and Cordoba and concluded, in essence, that the holding of Salcedo is limited to text messages because phone calls necessarily tie up a phone line in a way that text messages do not.  The Court finds that “enduring” a 30 second voicemail is sufficient to cause Article III harm.

The Court was also unmoved on the Defendant’s argument that Plaintiff’s injury was not traceable to its conduct. The number at issue had been (erroneously?) supplied by the Defendant’s customer–the appropriately-named-for-February Ms. Valentine. So, the argument went, Plaintiff lacks standing to sue Defendant because Valentine is the one to blame for the phone calls and not it.  But the call at issue was plainly placed by the Defendant. So the Court concluded the injury was traceable to its conduct. (That’s…pretty straightforward folks.)

Defendant also argued that Cordoba somehow required Plaintiff to respond to a voicemail and ask not to receive further calls before she could sue for a violation of the TCPA’s pre-recorded voice provisions. This is so because the Cordoba court had held that a party that had never asked not to receive calls cannot recover for a Defendant’s failure to maintain an internal DNC list. But it does not follow–at least in the Drake court’s view– that a Plaintiff must therefore affirmatively remove herself from a calling list when it becomes apparent she was receiving inadvertent phone calls.

Apart from standing, the Defendant also argued the FCC’s one-call recycled number afforded a defense. That’s an odd argument given that: i) the safe harbor was set aside by the D.C. Circuit Court of Appeal (although it was replaced by something even better); and ii) the number at issue was not a recycled number but just a wrong number. To surmount the latter hurdle Defendant offers this Hail Mary: the number must have been recycled to Plaintiff at some point–I mean, she didn’t always have the phone number, right? I mean, right?

Eesh.

While it is undoubtedly true that Plaintiff was not born with her phone number and it must, therefore, have been “reassigned” from somebody else to her at some point, that doesn’t mean it is a recycled phone number for purposes of the FCC’s safe harbor. The recycled number safe harbor existed–while it existed–to protect callers that received consent from the subscriber of a phone and then continued to call the new subscriber when the number changed hands without their knowledge. It, rather obviously, did not afford one free call to any number that was ever assigned to anyone ever.  The Drake court makes short work of this argument.

It is important to understand, of course, that the one-call safe harbor (again, while it existed) was not a general “wrong number” safe harbor–it was a specific recycled number safe harbor. A point that was not lost on the Drake court.

Drake also goes on to reject Defendant’s constitutional challenge, but that was more on procedural grounds than substantive and is not worth discussion here except to note that if you ever want to read a really long footnote check out FN6.

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The iA Case Law Tracker can help you keep up with new court decisions and conduct quick, incisive legal research in less time than it takes to pour your morning cup of coffee.

GENESEO, N.Y. — Coast Professional, Inc. (Coast) has hired Christopher Woodworth as Government Relations Facilitator. The Government Relations Facilitator is responsible for the management of the company’s government contracts, as well as the company’s All Small Mentor-Protégé Program. Christopher will be working from the company’s Geneseo, NY office. 

In his previous roles, Christopher oversaw the daily operations of government contracts, subcontractors, and over 450 employees. He brings 17 years of industry experience to his position and specializes in the large scale coordination of collection activities, policy generation, trend forecasting, and cross-functional team management. Christopher will be responsible for the continued top performance of Coast’s federal government contracts by creating and evaluating the company’s operational strategies and systems. 

“Christopher is joining Coast as a dynamic industry leader with nearly two decades of experience,” said Jonathan Prince, Coast COO. “He is an expert in strategic planning and developing high-performing teams and his management skills align perfectly with Coast’s overall mission. Christopher is a results-oriented leader, and his operational foresight will help streamline the company’s day-to-day procedures. Christopher will bring immense value to Coast and I am excited to welcome him to our team.” 

Christopher is a member of Project Management Institute, as well as the National Contract Management Association. He is currently pursuing his master’s degree in management science from Keuka College. 

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About Coast Professional, Inc.:

Coast Professional, Inc. is an accounts receivable management company, dedicated to the respectful and ethical collection of higher education and government debt. Coast provides professional collection services to over 200 campus based colleges, universities, and government clients. Coast is a six-time honoree on the Inc. 5000 list for America’s Fastest-Growing Private Companies provided by Inc. Magazine and in 2019, was recognized for the fourth time as one of the “Best Places to Work In Collections” by insideARM.com and Best Companies Group. Since 1976, Coast has worked closely with clients to increase recoveries by assisting consumers in resolving their financial obligations. Coast’s success is exemplified by exceptional recoveries, superior service, and dedication to the highest levels of compliance. More information about Coast can be found at www.coastprofessional.com

CHICAGO, Ill. — Provana, a leading provider of best-in-class solutions for accounts receivables management, is excited to announce its acquisition of Surefire Data Solutions. Surefire combines industry-leading compliance, advanced analytics, and proprietary software to deliver superior results and ROI for the nation’s largest credit issuers, auto finance companies, collections law firms, and agencies. 

Provana, headquartered in Chicago, IL, has a global presence of over 1,400 employees and invests heavily in building intelligent solutions designed to improve compliance, operational efficiency and access to business intelligence for regulated small-medium businesses and networked enterprises. 

This acquisition enables Provana to further strengthen its suite of product offerings by leveraging Surefire’s technology solutions which specialize in compliance software for data scrubbing, redaction, and indexing.  

The acquisition will benefit all of Surefire’s clients, which include several of the industry’s largest financial services companies. Clients such as PRA, CarMax, and Credit Acceptance, will now have access to Provana’s powerful technology suite of compliance management, network oversight, business intelligence, consumer contact, and process automation solutions. 

“I am confident that Provana’s domain-expertise and large technology team will result in further enhancements to our products as well as provide higher value to our clients. The Surefire team, led by Rick Olejnik, will work closely with the Provana team to ensure a smooth transition for our clients,” says Bill Sturm, Partner at Surefire Data Solutions. 

“Provana’s focus on investing in innovative legal process automation tools and external performance management solutions is a top priority for 2020,” adds Sandeep Bhargava, CEO and Co-founder of Provana. “The stellar Surefire products and market reputation will be an important addition to our existing product suite of legal tech solutions for our clients.” 

About Provana

Founded in 2011 and headquartered in Chicago, IL, Provana offers small- and mid-sized businesses and networked enterprises access to a global delivery model and cutting-edge tech-enabled solutions — including compliance management, business intelligence, consumer contact solutions, and process outsourcing & automation. 

The combination of technology expertise and a large global workforce with high breadth and depth of experience makes Provana the perfect partner to help organizations increase profitability, improve performance and exceed client expectations. 

About Surefire

Surefire provides innovative tech-driven data solutions that bolster compliance, analytics, and drive process automation. Surefire products help ARM industry professionals better utilize their existing data to increase revenue, collaboration and efficiency while reducing risk and improving compliance to deliver superior results and ROI for the nation’s largest credit issuers, auto companies, credit unions, and banks.

Editor’s Note: This article is broken up into three parts. Part 1 can be found here, Part 3 will be published next week.

The California AG’s Office has been working hard on the California Consumer Privacy Act’s (CCPA) proposed regulations. On Friday, February 7, 2020, the AG published revised proposed regulations, and then just three days later, on February 10th, the AG published revised proposed regulations again (citing an omission in the February 7th publication). 

Many of the revisions are meaningful and show the AG has been carefully listening and reviewing feedback, as well as doing its homework. For example, the AG’s Office is required to disclose what documents and information it relied upon during the rulemaking process, and the AG has disclosed 20 different published sources (ranging from studies and legal journals, to online articles and reports). 

While there were many revisions, there were 15 significant changes that may be of interest to the credit and collections industry. Part 2 of this article series deals with changes 6-10. Part 3 will be published on insideARM in the coming week.

6. Clarification on Business and Calendar Days for Responding to Requests 

The revised regulations clarify that a business has 10 business days to confirm receipt of a request to know or delete, and 45 calendar days to respond to a request (and an additional 45 calendar days to respond when necessary). The revisions also extended the timeline to comply with a request to opt-out by stating a business has 15 calendar days to process that request.

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However, if a business sells a consumer’s personal information after the consumer’s request, but before the business processes it, the business must inform the third party to whom it sold the information that the consumer opted-out and direct the third party to not sell that consumer’s information. 

7. Providing Context to Confirmation Receipts   

Many grumbled about the proposed regulations requiring a business to confirm receipt of a request. Perhaps in response to those grumbles, the AG’s office decided to include in its revisions a clarification that the “confirmation may be given in the same manner in which the request was received.” Accordingly, if the request was made over the phone, the confirmation may be provided verbally during that very same phone call. 

8. Simplifying what a Business Must Do when Responding to a Request to Know 

The revisions struck language which said a business “shall not provide a consumer with specific pieces of personal information if the disclosure creates a substantial, articulable, and unreasonable risk to the security of that personal information, the consumer’s account with the business, or the security of the business’s systems or networks.” The revisions replaced the language by stating a business is not required to search for personal information if four conditions are met:

1. The “business does not maintain the personal information in a searchable or reasonably accessible format,
2. The “business maintains the personal information solely for legal or compliance purposes,”
3. The “business does not sell the personal information and does not use it for any commercial purpose,” and
4. The “business describes to the consumer the categories of records that may contain personal information that it did not search because it meets the conditions stated above.”

The revisions lighten a business’s burden by relieving them of even having to perform the search if they can show the personal information meets the four conditions. 

9. Simplifying what Must be Disclosed in Response to a Request to Know  

The statutory definition of personal information states that it includes “inferences drawn from any [personal information] to create a profile about a consumer reflecting the consumer’s preferences, characteristics, physiological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.”

The fact that personal information includes “inferences” had many scratching their head when thinking about the data artificial intelligence creates (for example, when AI is used to inform a collection strategy). The revisions appear to address this. The AG added that a business “shall not disclose in response to a request to know . . . technical analysis of human characteristics.” One reading of this suggests that inferences made using AI do not need to be disclosed when responding to a request to know if such inferences are based on human characteristics rather than personal information. 

10. Eliminated Requirement that an Unverified Request to Delete be Treated as an Opt-Out Request  

The revisions struck the requirement that an unverified request to delete be automatically treated as an opt-out request. If a business sells information, the revisions added a requirement that the business provides the consumer with the option to opt-out of the sale of their personal information and to provide the consumer with the opt-out link. 

More to Come…

Look out next week for the final part of this 3-part series, that will cover the final 5 significant changes.

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

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Turns out words do have meaning, at least in the Third, Seventh, and Eleventh Circuits. Earlier today, a unanimous Seventh Circuit panel followed the plain language of the TCPA and held that a system must store or produce numbers, using a random or sequential number generator, to be an ATDS. See Gadelhak v. AT&T Services, No. 19-1738 (7^th Cir. Feb. 19, 2020). And because the defendant’s system dialed from a list of numbers stored in a database, it is not an ATDS, and “unwanted” text messages did not violate the TCPA.

Gadelhak is significant on multiple fronts. Most importantly, it became the second Circuit Court to reject Marks by name, making the circuit split 3-1 in favor of the statutory definition. Almost as significant, however, is the Seventh Circuit’s reasoning.

The court began by noting that when the TCPA was enacted, telemarketers relied primarily on systems that randomly generated telephone numbers and then dialed them. Thus, the statute’s “awkwardness,” to use the Court’s term, did not have much of an impact. The TCPA plainly applied to the type of systems Congress found problematic — namely, systems that generated and called random numbers.

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And despite acknowledging at least some awkwardness in the definition of an ATDS, the Seventh Circuit reasoned that the Third and Eleventh Circuit interpretation is “the most natural one based on sentence construction and grammar.” Which is not surprising. A statutory definition requiring a random or sequential number generator means that a system must actually have a random or sequential number generator to qualify.

When advocating for a broader definition of an ATDS, the Ninth Circuit and plaintiff’s attorneys typically argue that the random or sequential number generation requirement only applies to “producing” numbers, not to “storing” them. Thus, they argue, so long as a system stores numbers to be called automatically, it is an ATDS.

But as the Seventh Circuit pointed out, systems in use in 1991 and 1992 would “store” numbers that were randomly or sequentially generated for lengthy periods of time and then dial them throughout the course of a telemarketing campaign. Faced with systems that performed in this manner, Congress had every reason to include the word “store” in the statute. Otherwise, Congress would have left a gaping hole in the statute that would have excluded systems used by telemarketers at the time.

The Seventh Circuit further noted that jettisoning the random or sequential number generation requirement would be inconsistent with the “narrow” purpose of the TCPA. It, therefore, rejected the Ninth Circuit’s “ungrammatical interpretation,” in part because “it would create liability for every text message sent from an iPhone.” As the court observed, every iPhone is able to “store” numbers and then text or call them. Leaving the word “store” on an island, standing alone and unmodified, would, therefore, turn a once narrowly focused statute into a behemoth broad enough to capture commonly used personal phones.

The Seventh Circuit correctly reasoned that such a broad interpretation would be at odds with the plain language of the TCPA and its narrow focus. And that is certainly the case. As we have remarked several times here at TCPAWorld, the TCPA was enacted with a very narrow focus: prohibiting random-fire telemarketing calls. It simply was not passed to be a panacea against every form of “unwanted” telephone call or text.

Gadelhak is a tour-de-force of statutory construction and legislative history. It took an in-depth view of n the plain language of the TCPA and — significantly — of the reasons Congress included that plain language. And it provides a clear roadmap for future courts and the FCC, as they continue to litigate the definition of an ATDS.

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The iA Case Law Tracker can help you keep up with new court decisions and conduct quick, incisive legal research in less time than it takes to pour your morning cup of coffee.

COUNCIL BLUFFS, Iowa — S.C. Riverside, global recruiting specialists in the ARM and Revenue Cycle space, are pleased to announce the 20-year Anniversary of Vice President, Sonia Macias.

Macias has worked at S.C. Riverside since 2000. Before joining S.C. Riverside, Sonia was in the banking industry. She was born in Mexico City and is fully bi-lingual. She has earned numerous Pacesetter Awards for performance by assisting hundreds of ARM/Rev Cycle candidates and clients in improving their lives and businesses. 

“Sonia has been instrumental in our success for 20 years,” said Jim Finocchiaro, president and founder. “During her career she has filled industry searches for national Agencies, BPO Call Centers, Revenue Cycle Firms, and over 150 positions for government ARM contractors. In addition, she has filled client needs on five continents and countless nearshore locations. She is an essential part of S.C. Riverside, and we are fortunate to have her on our team.”

To learn more about S.C. Riverside Inc., visit us on the web at www.scriverside.com.

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The California AG’s Office has been working hard on the California Consumer Privacy Act’s (CCPA) proposed regulations. On Friday, February 7, 2020, the AG published revised proposed regulations, and then just three days later, on February 10th, the AG published revised proposed regulations again (citing an omission in the February 7th publication). 

Many of the revisions are meaningful and show the AG has been carefully listening and reviewing feedback, as well as doing its homework. For example, the AG’s Office is required to disclose what documents and information it relied upon during the rulemaking process, and the AG has disclosed 20 different published sources (ranging from studies and legal journals, to online articles and reports). 

While there were many revisions, there were 15 significant changes that may be of interest to the credit and collections industry. Part 1 of this article series deals with changes 1-5. Part 2 and Part 3 will be published on insideARM in the coming week.

1. Improved Guidance on the Definition of “Personal Information”

The revised proposed regulations added a whole new section to clarify that information is personal information if “the business maintains information in a manner that ‘identifies, relates to, describes, is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular consumer or household.’” The revision then illustrates this: “[f]or example, if a business collects the IP addresses of visitors to its website but does not link the IP address to any particular consumer or household, and could not reasonably link the IP address with a particular consumer or household, then the IP address would not be ‘personal information.’” 

This clarification is a huge sigh of relief because, without it, the definition of personal information is unwieldy. Many businesses possess information that could conceivably be “personal information” but don’t maintain it in a manner that could reasonably be linked back to the consumer or household. Accordingly, this revision makes the definition of personal information a little more palatable and manageable. 

2. Clarification about the Various Notices Requirements to Consumers 

You get a notice, you get a notice, everybody gets a notice! The CCPA has various notice requirements throughout its text. Therefore, it makes sense that the revisions summarized, in one convenient spot, all the CCPA’s different notice requirements. The added section (§ 999.304) creates a roadmap to each of the four different notice requirements. In doing so, the revised proposed regulations make it clear that the required notice a business must provide at or before the time it collects personal information directly from a consumer is distinctly different than a businesses’ privacy policy. Note, the revisions still require a business to link, or say where the policy can be found, in its notice at or before the time of collection.

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3. Multiple Clarifications about the Notice Before the Time of Collection 

The original proposed regulations (i.e., the proposed regulations prior to the revisions) assumed that the notice provided to a consumer at or before the time of collection would be in writing. It completely ignored the fact that data collection is often conducted over the telephone. 

The revisions overhauled § 999.305 by adding a non-exhaustive list of illustrative examples of how the notice may be provided. One of those examples addresses the situation where the data collection is done over the telephone. The example shows that the notice may be provided verbally if a business is collecting personal information over the telephone. 

While our industry welcomes this revision, we are already bracing for consumers’ reactions—when a consumer realizes they are speaking with a debt collector, for example, they are already usually irritated by our verification procedure (which is necessary to authenticate their identity) and the Fair Debt Collection Practices Act’s (FDCPA) required disclosures (e.g., mini-Miranda, meaningful disclosure, validation information, etc.). We cringe thinking about adding an explanation about the categories of information we may collect over the telephone during that conversation (or future conversations) and explaining the purposes for which that personal information may be used. Many consumers easily become impatient on the phone, and it would have been nice for the AG to allow for an abbreviated version of the notice when it is provided on the phone. 

The revisions also add one significant clarification: a business may not use a consumer’s personal information for a purpose which is “materially different” than those disclosed in the notice at collection. Adding materiality relieves a business from having to think of every little conceivable way it may use the data, and now allows a business some latitude within the realm of materiality. 

Lastly, the revisions clarify that a data broker, who is registered with the AG, is not required to provide the notice to consumers if it has included “in its registration submission a link to its online privacy policy which includes instructions on how a consumer can submit a request to opt-out.” This greatly simplified the prior proposed regulation which required data brokers to either contact a consumer directly and provide them with a right to opt-out, or to confirm with the source of the information that they provided notice at collection and to obtain signed attestations from the sources.

4. Simplification of the Privacy Policy 

The revisions simplified the privacy policy by removing three requirements. The privacy policy no longer requires the sources of collected information to be disclosed, the business or commercial purposes, or the categories of third parties with whom the business shares personal information. If a business sells personal information, however, the privacy policy must still identify the categories of personal information the business has disclosed or sold for a business purpose in the last 12 months, and for each category, “provide the categories of third parties to whom the information was disclosed or sold.” 

5. Clarification about the Methods for Submitting Requests 

The revisions to proposed regulation § 999.312 simplified the methods a business must offer a consumer to submit a request to know or delete. If a business “operates exclusively online and has a direct business relationship with a consumer,” then the business is only “required to provide an email address for submitting requests to know.” All other businesses must still provide two or more designated methods for submitting requests, “including at a minimum, a toll-free telephone number.” 

The revisions removed the requirement that a business is required to provide an “interactive webform” if the business maintains a website. Another sigh of relief, because setting up an email address to accept requests is a whole lot easier than (and just as effective as) programming an interactive webform. 

The revisions still require a business to “consider the methods by which it primarily interacts with consumers when determining which methods” it offers to consumers for making such requests.

More to Come…

Check back later for Parts 2 and 3 of this article, that will discuss the other significant changes in the revisions. 

Editor’s note: This article is provided through a partnership between insideARM and Squire Patton Boggs LLP, which provides a steady stream of timely, insightful and entertaining takes on TCPAWorld.com of the ever-evolving, never-a-dull-moment Telephone Consumer Protection Act. Squire Patton Boggs LLP—and all insideARM articles—are protected by copyright. All rights are reserved. 

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You’ll recall that the Eleventh Circuit Court of Appeal recently interpreted the TCPA’s ATDS definition narrowly in Glasser, parting ways with the Ninth Circuit’s decision in Marks and paving the way for the great collapse of TCPA litigation in Florida.

Unsurprisingly, the Glasser plaintiff is seeking a re-hearing before the Eleventh Circuit en banc. 

The identified issues in the petition:

• Whether the Telephone Consumer Protection Act (TCPA)’s restrictions
  on auto-dialed telephone calls apply to list-based autodialers, as held by Marks v.
  Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) and the dissenting panel
  opinion, or whether those restrictions apply only to autodialers that generate random or sequential telephone numbers, as held by the panel majority.
• Whether a computer in Kentucky that dials telephone numbers
  automatically is nevertheless not an autodialer because it required a human in Florida to forward the list of numbers to the computer.

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The arguments are recycled: Congressional intent and statutory language compel a determination that ATDS covers predictive dialers. But that’s not true and Glasser explains why.

Official prediction–this will go nowhere. Glasser is an extremely well-reasoned opinion. We will obviously keep an eye on this for you, however.

Petition can be found here: Glasser Re-Hearing Petition.

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The iA Case Law Tracker can help you keep up with new court decisions and conduct quick, incisive legal research in less time than it takes to pour your morning cup of coffee.

This article is part of the iA Think Differently series. Written by members of the iA Innovation Council, the series showcases thought leadership in analytics, communications, payments, and compliance technology for the accounts receivable management industry.

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Innovation is exhilarating but can be exhausting if you aren’t fully prepared for what lies ahead. It requires a great deal of tenacity to see the process through from ideation to deployment. Depending on your company’s readiness for innovation, internal bureaucracy, etc. you can expect to be going down this road for 1-3 years or longer. Before you make your first business case pitch or ask for a cent, you need to start doing the work internally to socialize your vision and garner support. 

Here are five suggestions for getting started:

1. Know which stakeholders you need to influence and start immediately – it is never too soon to start chatting up your eventual decision-maker(s) about your vision of the future. Gauge how receptive they are. Identify the areas where they are in full support and where you sense hesitation or they express concern.
2. Design your countermeasures – now that you know the concerns your decision-maker has, make sure that your plan to address them is fully cared for in your business case. If x is the concern, then y is the solution. As you move forward with your pitch, don’t be shy about addressing their concerns and sharing your thoughts on how they can be alleviated.
3. Find your champions – as you start sharing your vision, pay attention to who jumps on board right away. You don’t have to rely solely on yourself and your decision-maker to get a yes. If you have influential leaders in your network who will have a voice at the table as you propose and drive your innovation, make sure they know what, when and how you’ll need their support. Keep these people close throughout the process.
4. Benchmark, benchmark, benchmark – talk to industry peers (like insideARM’s Research Assistant), join industry groups focused on innovation (insideARM’s Innovation Council is a great place to start) and attend relevant conferences (insideARM’s Strategy and Tech conference). Gathering information on how the industry is handling and overcoming some of the same challenges you face is a powerful and credible way to create a compelling case.
5. Get your team on board – it’s one thing for a leader to have an innovative spirit, or to see a compelling need to improve, but if his or her team isn’t bought in, it can really slow things down. My last innovation challenge was met with a lot of initial pushback. Many of my teammates had been around for a while and doubted if I would have any better luck than all who had come before me. A major key to getting a team’s support is inclusion. Include your team on building a collective vision. Encourage them to rid their minds of all of the past nos and failures and think about the possibilities of innovation without limitation. Once you and your team have collaborated on your long term strategy, ask them to proactively identify the challenges they anticipate facing. Then enlist their help in strategizing how to overcome those obstacles. From there, you’ll be moving forward as a united group. One team, one vision, one goal. Make sure you celebrate each small win along the way and connect it back to the bigger vision. In my case, it took some time, but this approach helped me win over the naysayers, even my harshest critics. They started to believe and worked even harder to drive the change with me.

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For leaders who are used to forcing their agenda, this level of organizational savvy will seem like a lot of work. Maybe even unnecessary work. But as a visionary, I have tried to innovate through every method you can imagine. What’s been proven time and time again is that proactively readying the people you need to influence is not only necessary but paramount. You can’t do this alone.

To learn more about how to effectively influence positive change and innovation, join us at the 2020 Strategy and Tech conference, June 10th – 12th in Austin, TX. At this event, you’ll meet with strategy leaders across the collections and recovery industry, see demos of the 15 hottest new technology releases and attend numerous workshops on how to improve the effectiveness and efficiency of your collections operations. We hope to see you there!

About the iA Innovation Council

The iA Innovation Council is a collaborative working group of product, tech, strategy, and operations thought leaders at the forefront of analytics, communications, payments, and compliance technology. Group members meet in person several times each year to engage in substantive dialogue and whiteboard sessions with the creative thinkers behind the latest innovations for the industry, the regulators who audit and establish guardrails for new technology, and educators, entrepreneurs and innovators from outside the industry who inspire different thinking. 

2020 members include: