Archives for July 2020

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. 

The Supreme Court has accepted cert. on a petition brought by Facebook to resolve an ongoing circuit split over the proper application of the Telephone Consumer Protection Act’s (TCPA’s) automated telephone dialing system (“ATDS”) definition. This decision comes on the heels of another Supreme Court ruling issued just this Monday in which the high court determined the TCPA is unconstitutional as written, but can be saved by altering First Amendment doctrine and giving the TCPA a haircut.

While the TCPA has certainly been in the Supreme Court’s gaze as of late, that is not particularly surprising. The TCPA is the single broadest restriction on constitutionally-protected speech in our nation’s history and also produces piles of the most complex (and expensive) class action litigation out there. Indeed, it is not uncommon for Defendants caught in the grips of a TCPA class action to face billions or even tens of billions in potential exposure based upon the statute’s immense statutory damages. And since no one really knows what technology the TCPA applies to, the statute raises a host of constitutional issues—from First Amendment implications, void for vagueness problems, excessive fine issues and due process concerns.

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Indeed, the TCPA is an absolute junker of a statute from a Constitutional perspective, and it is requiring much upkeep by the Supreme Court to keep running. While SCOTUS dodged precedent to keep the statute on the books in Barr v. AAPC, the next go at the TCPA might not be so lucky. Eventually, the Supreme Court is going to get tired of wasting its time on a statute that doesn’t even work the way it is supposed to. 

While some issues applicable to the TCPA are esoteric, one is seemingly rather mundane: what technology does this thing even apply to?  That question is trickier than it seems.

Some Background

The statute’s language appears to apply only to calls made using a random or sequential number generators. The TCPA is the only tool Congress gave to the FCC or the Courts to regulate unwanted calls to cell phones. In the face of a barrage of robocalls in recent decades, that just isn’t much of an arsenal.

Although the TCPA is a bad fit for the job—again, its language is very narrow—past administrations of the FCC and some courts have taken it upon themselves to expand the statute to apply to all mass-dialed calls and texts. Without this expansion, they would allegedly be wholly empty-handed in the fight against robocalls.

The FCC rulings were recently set aside, however, throwing TCPAWorld into complete disarray with some courts applying the statute as written (i.e. to only apply to random-fired calls) and some courts applying the statute more broadly (i.e. to all automated calls). 

This fracture has led to extremely unusual—and highly problematic—circumstances. Some speakers are being held liable for speech they made years ago that was perfectly legal at the time, only to see the law change in a way that makes their conduct potentially unlawful only in retrospect. Other speakers are being sued in far-off jurisdictions for speech that was legal both in the jurisdiction where the speech took place and in the jurisdiction where some unnamed class members reside. Some speakers have seen their speech deemed perfectly legal in some jurisdictions and the exact same speech is deemed illegal in separate jurisdictions. And all of this has been capitalized on by the Plaintiff’s bar that is happy to sue in favorable jurisdictions, even if the bulk of the conduct at issue took place in a jurisdiction with more defense-favored law. 

ATDS Heatmap

Just how fractured is the TCPA ATDS landscape? I put together this handy heat map as a visual.  Check it out:

Key:

• Dark green: jurisdictions (the 7th and 11th Circuits) that follow the statutory definition (i.e. requiring random or sequential number generation to trigger the TCPA).
• Dark red: jurisdictions (the 2nd and the 9th Circuit) that eschew the statutory language in favor of an “all automated calls” approach to the TCPA.
• Light green:  jurisdictions (3rd and 5th) that lean toward the statutory definitions
• Light red: jurisdictions (1st and 8th) that lean toward the expanded approach.
• Yellow: jurisdictions (4th, 6th and 10th) that may be the most problematic of all for speakers—whether the TCPA applies to their speech still very much depends on what courtroom they are sued in.

What ultimately matters for determining liability is not where the calls were made, or even where the calls were directed. The only thing that matters is where the resulting lawsuit is filed. Companies making calls from green jurisdictions to other green jurisdictions may still be sued in red jurisdictions by clever—or calculating—Plaintiff’s lawyers. It’s despicable stuff but so long as the split of authority endures, so will these tactics.

The TCPA landscape is fractures, and it badly needs clarity

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Editor’s Note: This article previously appeared on the Ontario Systems Blog and is republished here with permission.

When I was a law student, I would never have guessed the reason I needed to understand constitutional law was so I could someday explain it to nonlawyers who place collection calls.

But today, in the wake of a major legal decision, I’m here to do just that.

As readers might recall, during the waning hours of the 114th Congress—in the proverbial back room of the Senate’s Chambers—Congress passed, and President Obama signed, the Bipartisan Budget Act. Buried in this Act, between an amendment to the Federal Crop Insurance Act and a change to the Petroleum Reserve Strategy, was a quiet amendment to the Telephone Consumer Protection Act (TCPA). The amendment established an exemption from the TCPA when collecting debt owed to or guaranteed by the Federal government. 

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For most third-party debt collectors, the amendment was a nonevent. But for those who collected Federal government–backed student loans and other Federal government debt, it was a cash cow—until the matter of Barr, Attorney General, Et Al. V. American Association Of Political Consultants, Inc., Et Al. Certiorari To The United States Court Of Appeals For The Fourth Circuit No. 19–631 reared its ugly head. 

SCOTUS Strikes Down the Federal TCPA Exemption

The case was argued May 6, 2020. On July 6, the United States Supreme Court affirmed in favor of the U.S. Office of the Attorney General, holding that the 2015 Federal government exemption from the TCPA was unconstitutional. 

The original petitioners in the case—namely the American Association of Political Consultants and three other organizations that participate in the political system—filed a declaratory judgment action, claiming that §227(b)(1)(A)(iii) violated the First Amendment. The petitioners were basically jealous [my word] of the TCPA exemption Congress granted persons who collected debt owed to the Federal government; the petitioners wanted to make robocalls, too. 

In seeking a declaratory ruling, the petitioners were hoping the district court would: 1) agree the Federal government debt exemption from the TCPA violated the free speech clause of the U.S. constitution; and 2) declare the entire prohibition against robocalling unconstitutional. As a result, the petitioners and other callers would be free to make robocalls. 

Unfortunately for the petitioners, the district court did not rule as they had hoped. Rather, the court determined that although the robocall restriction with the government debt exemption was content- based and therefore in violation of the constitution, it would withstand constitutional scrutiny because of the overarching need to collect Federal government debt. 

On appeal, the Fourth Circuit vacated the judgment, agreeing that the robocall restriction with the government debt exception was a content-based speech restriction but holding that the law could not withstand strict scrutiny. The court invalidated the government debt exception, applying traditional severability principles to sever it from the robocall restriction.

In other words, by not striking the TCPA’s entire prohibition against robocalling as unconstitutional, the Fourth Circuit did not go as far as the petitioners would have liked.

Upon Certiorari, the United States Supreme Court affirmed the judgment of the Fourth Circuit. 

What Does This Decision Mean for You?

Now that the TCPA applies to all third-party collectors equally, here are four things you should bear in mind if you collect government debt. 

1. Stay the course and obtain consent

As required by the TCPA, you must first obtain the consumer’s consent if you:

• Place calls or texts using an automatic telephone dialing system to a mobile phone;
• Leave pre-recorded messages on a mobile phone; or
• Use an artificial voice to contact consumers on their mobile phone.

2. Federal government debt is no longer expressly exempt

If you collect on behalf of a state or local government or the Federal government, you must comply with the TCPA. This is because the TCPA applies to any Person. Person is defined as an individual, partnership, association, joint-stock company, trust, or corporation. 

3. Governments might be able to skirt the TCPA

The TCPA’s prohibition against robocalls, robo texts, pre-recorded messages, and use of an artificial voice to place calls to a mobile phone only applies to a Person as that term is defined. Federal, state, and local government bodies could possibly avoid TCPA compliance by arguing they are not a Person as defined by the Act.

4. TCPA restrictions on speech do not violate the free speech clause of the U.S. Constitution

At this point, the TCPA’s prohibition against robocalling, robo texting, leaving pre-recorded messages, and using an artificial voice to communicate with a consumer via their mobile phone does not violate the Constitution. But we’re likely to see future legal challenges on this front.

Recently, ACA International was successful in challenging the state of Massachusetts’ COVID-19 ban on debt collection communications during the state of emergency based on free speech grounds. I would not be surprised to see a challenge to the TCPA as well as to the Fair Debt Collection Practice Act’s prohibitions on consumer communications based on free speech grounds.

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After the U.S. Supreme Court dropped its Seila decision, it left many people and businesses on all sides of the aisle scratching their heads. All of the sudden, a million questions popped up. In an effort to provide some clarity, the Consumer Financial Protection Bureau (CFPB) issued a ratification of its prior actions. The ratification is scheduled to be published in the Federal Register tomorrow.

In last week’s decision,  found that the Consumer Financial Protection Bureau’s (CFPB) structure—specifically, the for-cause only removal of the director—was unconstitutional as it violates the Constitution’s separation of powers. The majority opinion severed that portion of the statute that created the CFPB, stated that the director should be removable at will by the president, and sent the case back to the circuit court of appeals to determine whether the civil investigation demand that prompted the Seila case was validly ratified.

With its ratification, the CFPB attempts “[t]o resolve any possible uncertainty” caused by the Seila decision. The ratification encompasses, among a list of other items:

• Documents published by the CFPB in the “Rules and Regulations” category of the Federal Register, with the exception of the CPFB’s arbitration rule, which Congress killed through the utilization of the Congressional Review Act, and the payday lending rule, which the Bureau pulled back on and, just the other day, finalized the rescision of the mandatory underwriting requirement.
• Consumer information publications issued by the CFPB.
• Notices titled “Fair Credit Reporting Act Disclosures”

The CFPB is still considering whether it should ratify other actions, such as pending enforcement actions.

The ratification notice elaborates:

Based on the Director’s evaluation of the Ratified Actions, it is the Director’s considered judgment that they should be ratified. This decision is reinforced by the fact that, based on the Bureau’s experience as a regulator of markets for consumer financial products and services, the Director is acutely aware that many of the Ratified Actions have engendered significant reliance interests. Consumers, the business community, State and local governments, and other individuals and entities have all relied upon the validity of the Ratified Actions in organizing their activities. This ratification secures those existing reliance interests by avoiding doubt as to the validity of the actions following the Court’s decision in Seila Law.

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insideARM Perspective

While the Bureau’s ratification certainly makes its position loud and clear, it’s still difficult to tell what, exactly, this all means. For example, Director Kraninger chose not to ratify the CFPB’s old arbitration rule, but that rule was created and passed—and subsequently killed—prior to her directorship. 

To help us understand the situation a little better, insideARM reached out to Joann Needleman, leader of Clark Hill’s Consumer Financial Services Regulatory & Compliance group, for some insight. Needleman states:

It’s still unclear whether ratification is the magic fix to the actions taken by the Director, as well as her predecessors who were unconstitutionally insulated. The Supreme Court in Seila intentionally stopped short of articulating a specific remedy. Cordray’s ratification of his prior actions taken upon his confirmation by the Senate after his recession appointment was held to be unconstitutional and was not immediately challenged. The Supreme Court has held that for ratification to be effective, the party ratifying must have been able to do the act ratified at the time the act was done. That simply is not the circumstances we have here.

Because of this uncertain, parties who are subject to pending enforcement actions will be challenging the Director’s current statements on ratification. Similarly, consumer advocates who oppose the Bureau’s rulemaking activities for payday and debt collection will make the same arguments. For payday, advocates will argue that Kraninger had no constitutional authority to pull back the ability to repay provision in the payday rule during its implementation period. For debt collection, the challenge could be that she had no authority to approve the various provision of the NPR, especially in the areas of call caps and electronic communications.

Sounds like only time will tell how all of this shakes out.

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. 

Better bust out the popcorn—the Navient Solutions, LLC v. Law Offices of Jeffrey Lohman, P.C. case is still as crazy as ever. We’ve been chronicling this drama for several months now, and the court continues to absolutely skewer these TCPA plaintiff-lawyers, who are sitting the other side of the V for a change.

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Navient is alleging the law firm conducted to manufacture TCPA claims and defraud Navient: Here’s the CliffsNotes version of the alleged scheme: After “luring” student borrowers in under the guise of debt relief, Navient alleges the law firm would convince students to stop paying their loans (and start paying other entities instead), give them a script to read that instructed Navient to stop calling them, and tell them not to answer any other calls (which inevitably would come when they defaulted). The firm would then sit back, wait, then tally up the TCPA fines and eventually sue Navient.

Navient eventually caught on and went on the offensive, to say the least. They came out guns blazing, suing Lohman and his employees (among a plethora of other defendants) in the Eastern District of Virginia. The defendants filed a bunch of counterclaims, but the court seems to be knocking them out one at time.

As we’ve been reporting, the EDVA has been pretty ruthless for Lohman so far, and there’s been a flurry of activity in recent months despite the ongoing pandemic. Back in November, the court threw out Lohman counterclaims and denied its motion to strike under California’s anti-SLAPP law back, and then tossed another defendant’s counterclaims in April. Then, the court entered default against an absent debt-relief company alleged to have been involved in the scheme, entering a $6.15 million judgment.

But that’s far from the worst of it for the plaintiffs’ lawyers. As we detailed in March, the magistrate judge held that Lohman’s otherwise privileged communications with his clients were discoverable under the crime-fraud exception, and the district judge agreed. OUCH—there’s no decision on the merits yet, but this certainly spells trouble for Lohman.

Lohman tried to fight back against some of this in May by filing a motion to compel Navient to produce privileged communications. Lohman argued that Navient waived attorney-client privilege by putting its attorneys’ advice regarding causation and damages at issue in the lawsuit, but the magistrate judge found no basis for that argument. Lohman just filed a motion for reconsideration of this decision, but it seems unlikely that he’s going to be able to even the playing field here.

The magistrate judge issued another decision last week in Navient Solutions, LLC v. Law Offices of Jeffrey Lohman, P.C., No. 1:19-cv-461, 2020 U.S. Dist. LEXIS 117260 (E.D. Va. July 1, 2020), and Navient continues its winning streak. This court here denied a motion to compel Navient to supplement several discovery responses, finding it “meritless for several reasons.”

Two former Lohman associates named as defendants in the original suit filed the motion in June. The court first held that they lacked standing to compel responses to discovery that Lohman (not the associates) had propounded. It didn’t matter to the court that the associates—who obtained new counsel in March—had been represented by the same attorneys as Lohman when the discovery was sent.

The associates couldn’t compel responses to their own discovery requests either. They were too late. They had Navient’s responses for over seven months by the time they filed the motion to compel in June, and according to the court, they should have done so during the meet-and-confer process in late 2019, or at least “in the earlier months of 2020 by the latest.” The court reiterated that it had granted prior discovery extensions (a rarity in this court) to accommodate newly added defendants as well as the difficulties associated with conducting discovery during the COVID-19 pandemic. These extensions had nothing to do with the defendants’ various “long-winded complaints,” and the court didn’t extend so that the associates “could procrastinate resolution of discovery disputes.” Pretty brutal introduction to the Rocket Docket.

The fact that the associates “slept on their discovery remedies” was, in and of itself, enough for the court to deny the motion in its entirety, but it still explained why it would deny the motion to compel on the merits anyway: Simply put, Navient’s objections to the “incredibly broad” requests were “valid and [had to] be sustained.”

Notably, the court said that requests regarding Navient’s debt-collection policies had “no bearing on the claims and defenses” in the case, given that the “matter is not an ‘underlying’ TCPA case” and instead involves claims “for racketeering against a group of businesses, law firms, and individuals that allegedly worked together to recruit clients and produce fraudulent lawsuits.” This aspect of the decision in particular is yet another big win for Navient (if it stands after reconsideration/objections, which seems likely), as it could signal that the court’s sole focus will be on the RICO-related conduct, not on any conduct of Navient.

For now, Navient continues its forward attack, and it’s not taking any prisoners. This continues to be the most successful RICO case we’ve seen, and companies and lawyers should closely monitor developments. More to come.

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STERLING, Ill. — VeriFacts, LLC recently volunteered at the Sauk Valley Foodbank in Sterling, IL to help feed hundreds of local families who are facing food insecurity. 

While VeriFacts. has been tackling the challenges of being a small business during the COVID-19 pandemic, food banks have been battling not just the increased demand for meals, but also a drop in the number of volunteers. To support families from the local community who are also hurting during these times, the VeriFacts team volunteered at the Sauk Valley Foodbank to package 300 boxes of food. The Sauk Valley Foodbank distributes the boxes to local food pantries for distribution within the community. With each box feeding a family of 4, the team helped to ensure that approximately 1,200 people have access to food. 

The Sauk Valley Foodbank is a 501(c)(3) charitable organization that began in 2001 after the United Way of Whiteside County formed a committee to address the increased demands on local food pantries after the closure of large manufacturing businesses in the area. The organization began with two pallets of donated food almost two decades ago and has now grown to handle more than 2 million pounds of food per year. The Sauk Valley Foodbank doesn’t distribute directly to those in need, instead, it supplies food to local food pantries and other agencies. 

“We have all felt the impact of the COVID-19 pandemic and our team knows how important it is to give back to our community, especially in times of crisis,” says Stephanie Clark, Chief Executive Officer of VeriFacts, LLC. “By volunteering for just one day, we helped to package meals for 300 families who are facing hunger, giving them one less thing to worry about during these challenging times. We feel that it is essential to step in and step up to help our neighbors during these uncertain times. We hope that through our service, we inspire others to give their time or share their talents to help lessen the impact of the pandemic in their own communities.”

With local food banks struggling to meet the needs of the community, the VeriFacts team is not only volunteering for one day at the Sauk Valley Foodbank. “We realize that the needs in our community are amplified by the coronavirus outbreak,” continues Ms. Clark. “The Sauk Valley Foodbank is doing essential work to ensure that our community has enough to eat. Over the next few weeks, we will continue to volunteer and package meals that will be distributed by local food pantries to those who need it the most. We are a small company with a big heart, and we are humbled to be able to make such a large impact with such a simple donation of time.” 

To volunteer, make a donation, or get more information about the Sauk Valley Foodbank, please visit their website at saukvalleyfoodbank.org.

About VeriFacts, LLC

A leading service provider to the receivables management industry for over 25 years, VeriFacts, LLC  is committed to offering guaranteed customer location and employment verification services to creditors across the nation. The VeriFacts brand has become synonymous with high-quality service and a positive customer experience.

The U.S. Supreme Court decision in Spokeo v. Robins was all the rage when it was first released in 2016. In reality, it caused a messy aftermath of case law related to Article III standing that ultimately led to a big circuit split in the FDCPA context. This week, the Eleventh Circuit Court of Appeals (11th Circuit) further solidified this split when it found that a plaintiff who claims consumers might be misled by a debt collection communication, but he himself was not misled, lacks Article III standing to bring an FDCPA claim.

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Factual and Procedural Background

In Trichell v. Midland Credit Mgmt, Inc., at issue were collection letters sent by defendant to several consumers. The letters contained “preapproved” discounted payment plans on time-barred accounts. The letters also included a time-barred debt disclosure that read, “The law limits how long you can be sued on a debt and how long a debt can appear on your credit report. Due to the age of this debt, we will not sue you for it or report payment or non-payment of it to a credit bureau.”

Two plaintiffs sued defendant in two separate lawsuits, both alleging that this language was false and misleading. One suit alleged that the language could mislead a consumer into thinking that defendant could could sue or credit report the account—the ol’ “will not” versus “cannot” wording debacle of time-barred debt disclosures. The other suit alleged that the language was misleading because it did not warn about the consequences of a partial payment on a time-barred debt.

The district court dismissed each case, and both were appealed to the 11th Circuit. In its decision, the 11th Circuit combined the cases.

Decision on Standing

According to the decision, neither party argued standing in their respective initial briefs, and standing was not discussed in the district court opinions. Yet, standing became the crux of the cases after the 11th Circuit, on its own accord, requested that the parties brief the issue. The appellate court concluded that both plaintiffs lacked standing, whichever way the issue was sliced.

Poignantly, the court found:

With no plausible allegation that they were ever at substantial risk of being misled, Trichell and Cooper cannot show standing based on such a risk to others.

The court delved into several different theories of standing, and came to the same conclusion in each.

Theory 1: No detrimental reliance

First, the court looked at history to see when an intangible injury—such as the one here, since plaintiffs failed to show that they themselves were actually misled by the letters—qualifies as concrete. The closest example the court could find to a false/deceptive/misleading claim is one of misrepresentation, which requires that the plaintiff relied on the misrepresentation to their detriment and had actual damages. Plaintiffs were unable to show either element in their claims before the 11th Circuit.

Theory 2: Congressional intent

Next, the court looked at congressional intent to determine whether Congress intended intangible, purely statutory damages to meet the standing threshold. The court notes:

The FDCPA’s statutory findings contain one sentence identifying the harms against which the statute is directed: “Abusive debt collection practices contribute to [a] number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.” 15 U.S.C. § 1692(a). These serious harms are a far cry from whatever injury one may suffer from receiving in the mail a misleading communication that fails to mislead.

…

The FDCPA’s private cause of action reinforces this analysis. It provides that a person may recover “any actual damage sustained by such person as a result of” an FDCPA violation and “such additional damages as the court may allow.” 15 U.S.C. § 1692k(a). This formulation suggests that Congress viewed statutory damages not as an independent font of standing for plaintiffs without traditional injuries, but as an “additional” remedy for plaintiffs suffering “actual damage” caused by a statutory violation.

Theory 3: Standing based on risk

Next, the court rejected plaintiffs’ arguments that they had standing based on risk. The court was unpersuaded with the idea that potential risk to others is sufficient. Instead, it found that plaintiffs failed to show that the letters posed any risk of harm to themselves, and that any risk that may have existed dissipated by the time the suit was filed. Regarding the latter, the court noted that the “complaints explain perfectly well why the collection letters were arguably misleading,” which indicates that plaintiffs could not allege that they would be misled in the future.

Theory 4: Standing based on informational injuries

Last, the court rejects plaintiffs’ theory that their standing is based on informational injuries. The primary reason for this rejection was because, unlike other statutes where informational injuries might serve as standing, the FDCPA sections invoked by the plaintiffs are not public disclosure statutes that require the disclosure of certain information. Instead, these invoked sections only requires that if a debt collector communicates with a consumer, that communication must not be misleading.

And the gravamen of the plaintiffs’ complaints is not that they sought and were denied desired information, but that they received unwanted communications that were misleading and unfair. The informational-injury cases thus are inapposite.

insideARM Perspective

Regardless of the way the standing issue is sliced, the 11th Circuit found that plaintiffs lacked Article III standing because they themselves were not misled by the communication. This is huge, and might put the kibosh on the myriad false/deceptive/misleading claims brought by the frequent filer attorneys in the 11th Circuit.

In its decision, the court recognizes that there is a circuit split on this issue. Might this be yet another industry-related case that sees its way up to the U.S. Supreme Court’s steps? That would sure be interesting.

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ITASCA, Ill. — Brown & Joseph, an international commercial collection agency for Insurance Premium Recovery announces that Tom Yodzis, formerly with CNA Insurance and Zurich Insurance, has joined the team at Brown & Joseph and Altus! 

Tom brings over 35 years of experience in the insurance industry, most of it leading billing and collection departments with three different insurance carriers. Most recently, Tom served as Assistant Vice President at CNA Insurance. Prior to that, he spent 15 years at Zurich Insurance in a similar role.

“Brown & Joseph’s commitment to the insurance industry for premium recovery solutions is unparalleled in the collection industry. As a long-term client, I knew I could count on them,” Tom commented. 

“And now as a team member of Brown & Joseph, I am looking forward to sharing these same capabilities and attributes with insurance carriers.”

In 1996, Tom joined the Insurance Collection Executives (ICE), a group of like-minded professionals in the insurance industry confronted with the challenges for collecting premium receivables. For over 40 years, ICE has provided Insurance Collection Executives a forum to promote and encourage the exchange of ideas of mutual benefit and to discuss pertinent subjects of interest to the insurance industry. 

Seeing a need to expand the group, Tom led the organization’s transformation in 2005 and served as its first President for 10 years. Since then, Tom has remained on the Board of Directors. During his tenure with ICE, Tom helped ICE to be recognized as the premiere Insurance billing and collection conference for Insurance Executives.

“Tom brings invaluable insight into our business as a client while at CNA and Zurich. I have known Tom for more than 10 years and could not be more excited to bring yet another asset to our insurance clients with Tom’s vast knowledge of the insurance industry,” commented Mike Baldwin, CEO of Brown & Joseph and Altus.

In his new role as Vice President of Sales, Tom will work closely with Sales and Operations to support Brown & Joseph and Altus’s impressive growth trajectory.

For more information on the services Brown & Joseph and Altus provide to insurance carriers, please contact:

Tom Yodzis
Vice President of Sales
(847) 758-3000 ext. 533
TYodzis@brownandjoseph.com

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

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As timelines for STIR/SHAKEN implementation, mandated by the TRACED Act, move closer and closer, conversations about call authentication through STIR/SHAKEN have started to trump conversations about call blocking and labeling analytics. There is a lot of information published online about STIR/SHAKEN, some technical, some hypothetical, but our purpose here is to discuss the challenges associated with STIR/SHAKEN call authentication and the enterprise caller.

Let’s start with some definitions. In the STIR/SHAKEN standard, “Verified Caller” is the end result to be presented at the terminating side of the call. This verified status will be visually depicted on the called party’s mobile device with a graphic icon such as a green checkmark, which will let you know the calling party (ex. USA Hospital via the phone number 111–222–444) has been verified through STIR/SHAKEN.

There are data checks necessary to present Verified Caller to the called party. There are also various parties involved in the data checks, as well as two competing solutions proposed by the industry to capture and elevate those data checks to the point of entry where verified calling entities enter the STIR/SHAKEN framework (i.e. the Delegated Certificates Solution vs. the Central Repository Solution).

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STIR/SHAKEN KYC ‘data checks’ validate the relationship between who you are and what number you’re using.

To achieve Verified Caller, the STIR/SHAKEN standards define two data checks to be performed by the originating service provider. These involve vetting and verifying the enterprise through a ‘Know Your Customer’ (KYC) process as well as a verification process to ensure the entity is authorized to use the phone number. This may sound straight forward as a concept, but when put to practice in real-world call center examples, it becomes way more complex.

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The challenges faced when no one has verified who you are and what number you’re using.

The majority of originating service providers cannot actually attest to the authorized number + verified identity of the call originating on their network for enterprise callers such as hospitals, schools, utility, government entities, and more. This is because the originating service provider does not have a direct relationship with the calling enterprise — the enterprise may be nested a few levels down, behind a BPO and a CPaaS provider, for example. Therein lies the complexity of the originating service provider “vouching for” a business they don’t actually know and have never directly interacted with. This is where the KYC process is required to connect the dots between the originating service provider, and the brand actually represented in the call (the enterprise caller) and its associated phone number to be displayed to a called party.

Point of Entry to Endpoint — The Call Journey

So where does all of this magic happen?

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Through STIR/SHAKEN, the entry point for the verified calling enterprise (number + identity) sits on the originating carrier side. The identity of the enterprise needs to be elevated up to the originating service provider (OSP) in order for the OSP to pass the Verified Call through the network over to the terminating side. Without the elevation of the caller’s identity (plus phone number), the OSP will not be sure who is actually behind the content of the call, and will not be able to fully attest to the verified (or not) status of the call. This is a gap that can be filled with a KYC process to verify the relationship between the various parties. 

The STIR/SHAKEN Verified Caller endpoint, where the depiction of a Verified Call visually takes place, happens on the terminating carrier side. This carrier is oftentimes different than the originating carrier and thus relies on the authenticated information passed from call origination to call termination.

The challenge in the standards and in the industry is how to securely and reliably identify the calling enterprise alongside the appropriate phone number and elevate this trusted relationship to the point of entry for STIR/SHAKEN call signing at the terminating side.

Whether you are an enterprise caller, BPO, CPaaS, RespOrg, or service provider, multiple stakeholders play a role to coalesce the enterprise identity and phone number and elevate it to the entry point. There is no one solution, and no one organization is responsible to make this happen; it is collaborative.

To facilitate this collaboration and open, transparent discussion, Numeracle brought a panel of STIR/SHAKEN subject matter experts together on June 18, 2020 for a virtual event titled: “How to Become a Verified Calling Enterprise in STIR/SHAKEN.” To view the video introduction to this event, as presented by Numeracle Founder and CEO, Rebekah Johnson, inclusive of topics we’re covered here in this article, see below. 

Introduction to Becoming a Verified Calling Enterprise in STIR/SHAKEN, presented by Numeracle

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‍Rebekah Johnson is CEO of Numeracle, a technology company that provides a path for legal callers to prevent the improper blocking and labeling of their calls, and ensures trusted callers are vetted, verified, and properly identified across the calling ecosystem.

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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 (and lately, virtually) 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:

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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. 

This last weekend our nation celebrated—if that word can rightly be used given the current turmoil—its Independence Day. First among the freedoms we hold dear is the right to free speech. It says so right here in the First Amendment:

Congress shall make no law… abridging the freedom of speech…

Seems pretty clear.

In yesterday’s U.S. Supreme Court decision of Barr v AAPC, however, the Supreme Court not only upheld the broadest restriction on Constitutionally-protected speech in our nation’s history, it did so in a manner that will help shut down future challenges to statutes that abridge speech—creating an entirely new First Amendment doctrine in the meantime. And that is a really big deal.

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As dark as this decision is for free speech—more on that below—many will cheer the decision as a victory. The “Supreme Court Pushes Back Against Robocalls,” the headlines will read.

In truth the Supreme Court breathed new life into a bad statute, the Telephone Consumer Protection Act (“TCPA”), that does little (probably nothing) to prevent the sort of robocalls consumers hate most. That is because the TCPA is not effective against overseas call centers and fly-by-night scammers—the ones causing all the trouble. Those sorts of calls are stopped by the FCC’s far more effective call blocking and authentication rules. These technological solutions have cut down massively on robocalls in a way the TCPA never achieved.

But the perception that the TCPA prevents robocalls undoubtedly guided the court’s analysis of the statute and generated the court’s stunning conclusion: that although the statute is unconstitutional as written, it can still be applied against the party challenging it.

How is that possible you might ask?

The TCPA, unlike most restrictions on speech, is written extremely broadly. (Again it is the most broad restriction on speech Congress has ever devised.) Rather than target specific speech for its illicit or undesired content, it targets ALL speech made in a certain manner. And while it might seem counter intuitive that a broad restriction on speech is superior to a narrow one under the First Amendment, the Barr court focused on the statute’s great and even breadth as one of its most palatable attributes.

From the Supreme Court’s perspective, the problem with the TCPA is not its tremendous breadth, but with a tiny sliver of calls that Congress did allow: debt collection calls on government-backed debt. And while the average American might think it is a good thing for the government to be able to call folks that owe it money, this uneven restriction on speech triggered strict scrutiny, a very intense form of Court review that is supposed to prevent intrusions on our freedom.

So far so good. First Amendment doctrine has long held that where a statute restricts speech unevenly in a so-called “content specific” sort of way, the Supreme Court is to apply strict scrutiny to that statute and strike it down. That way our freedoms enshrined in the Bill of Rights are protected from government intrusion—Independence Day and all that.

Except…in Barr, the Supreme Court did not strike down the TCPA the way it was supposed to. Instead, focusing on the importance of preventing robocalls, the Supreme Court struck down solely the exemption permitting speech and expanded the TCPA to cover even more speech.

What this means is that the party challenging the statute as unconstitutional won, but still lost. Instead of having its own speech deemed legal, it only got to see other speakers also lose their voice.

This, the Barr court tells us in a footnote, is okay because many times private speakers will want other private speakers to be quiet, such as when one wishes to silence a business rival. But the fact that private speakers may wish to silence one another certainly should not justify allowing the government to silence all of us. That is exactly what the Court’s decision accomplishes.

Specifically, Barr introduces a new First Amendment doctrine and new parlance to go with it: introducing the First Amendment “equal treatment” case. In such cases, the Supreme Court holds for the first time ever in Barr, the proponent of free speech is not actually entitled to free speech, rather he/she/it is entitled only to as much speech as everyone else gets. No more, no less.

While “evenness” has long been the touchstone of review in Equal Protection challenges, the First Amendment has traditionally operated differently. The goal in a free speech challenge is not to “even out” speech, it is to set it free. Its not to assure that the muzzle I wear is the muzzle you wear, it is to take off the blasted muzzle.

Sadly, in Barr, the Supreme Court left the muzzle on and handed the government a big victory in doing so. Indeed, it follows from Barr that the government can safely restrict all speech to everyone so long as it does so evenly. And where Congress chooses to cherry-pick favored speech and remove it from a broad restriction, the worst that can happen is that the Congressional permission slip will be revoked and everyone will be silenced again.

This is a really bad day for free speech, folks. A day that saw the creation of an entirely new First Amendment doctrine that appears developed specifically to justify denying speech to a successful First Amendment challenger. A doctrine that perversely (yet expressly) converts the First Amendment from a tool designed to protect speech into a tool that can only be used by private actors to take away speech from other private actors. It converts the First Amendment into a glorified ironing board. Simply remarkable.

Against this backdrop, the impact Barr has on the actual TCPA is almost immeasurably small. The ruling is extremely narrow and tightly confined. It does not move the needle on TCPA jurisprudence at all except to expand the statute to reach collectors of government-backed debt again. (And it remains to be seen whether this expansion can be applied retroactively.)

But for all of us as Americans, the decision in Barr should send a chill down our collectives spines. The Supreme Court has sacrificed some of our most cherished rights and ideals today in the name of upholding a bad statute that does not even do what it was intended to do, all in the name of preventing robocalls. And while it is true that we all hate unwanted robocalls, I would like to think we still love our freedom of speech a little bit more.

Then again, we all live in our private echo chambers these days, listening only to the views/news/opinions we want to hear and discounting all others. Perhaps then, here in 2020, Americans have finally had enough of free speech and prefer simply to be left alone.

If so, Barr is certainly the Supreme Court ruling for you.

Want to track TCPA trends and important court decisions?
The iA Case Law Tracker helps you do that in less time than it takes to pour your morning cup of coffee.

TORONTO, Ontario — Debt Control Agency (DCA), today announced the opening of DCA’s West branch and the addition of Greg Carter as Vice President of West Branch located in Kelowna , BC. In this role, Greg will oversee the development and implementation of DCA’s strategy and business development intended to increase DCA’s presence in the ARM/Collections space.

“With more than 30 years of Collections/ARM global solutions , Greg has a proven track record of driving business results through innovative program design and building lasting relationships with stakeholders across a variety of industries,” said Mohsen Monavari, President and CEO, DCA.

Greg will be responsible for the growth and development of innovative new program offerings with implementing the company’s overall values, mission and strategic goals while promoting DCA as the ‘brand name’ in the Collections/ARM space. 

About DCA

Debt Control Agency (DCA) is a leading national provider of collections, receivables management and customer services.  DCA is headquartered in Toronto with contact centres in Ontario, Quebec and British Columbia. We are nationally licensed and provide consumer and commercial debt recovery and customer services to our clients in various industries.

DCA is results-driven and focused on servicing our clients with the highest collection recovery rate while maintaining the best standards of customer responsiveness in the industry. Keeping this in mind, we continually invest in the company and our greatest asset, our people. DCA staff is thoroughly trained during onboarding as well as continuously subjected to standardized testing and monitoring. Our senior management team has held key positions within the collections industry and have over 100 years of combined experience.

For more information about DCA visit: www.debtcontrolagency.com