Today’s post is about end runs. And, no, we haven’t started covering the NFL Draft.

Unified Data Services, LLC is in a tight spot. The operators in their call centers use Soundboard, a technology that allows operators to play recorded clips that can be interrupted with live communication. In some cases, a single operator may use Soundboard to run multiple calls simultaneously.

[article_ad]

In 2016, the FTC issued an opinion letter concluding that Soundboard violates the “robocall” provision of the Telemarketing Sales Rule, 16 C.F.R. § 310.4(b)(1)(v). The opinion letter also rescinded the 2009 advisory opinion letter blessing the use of Soundboard. If enforced, the opinion letter would bench an entire industry. 

UDS brought suit. See Unified Data Services, LLC et. al. v. United States Federal Trade Commission, No. 2:19-CV-00698 (D. Nev. 2019). The company argues that the FTC shouldn’t be allowed to work such a dramatic shift in the law by opinion letter. Instead, the FTC should engage in its normal rule-making process, giving people (including corporations, my friend) the opportunity to weigh in. Anything less is an end run around the laws requiring public notice and comment.

UDS also targets the substance of the FTC’s opinion letter. According to its complaint, the TSR was intended to target “a specific evil: one-way, pre-recorded communications that do not involve any human interaction, also known as a ‘robocall.’” As UDS sees it, the use of Soundboard doesn’t run afoul of that rule—there’s a human being on the other end of the line. 

The case will determine not only the future of Soundboard, but the scope of the FTC’s opinion letters. And the only people watching more closely than UDS will be those of us here at TCPAWorld.

—

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 one is big. The Fourth Circuit Court of Appeals, in a first-in-the-nation result, just held that the TCPA violates the First Amendment because the government-backed debt exception is an unconstitutional, content-based restriction on speech. Unfortunately – and probably incorrectly – the court also held that the statute could be saved by severing the government-backed debt exception from the statute. See American Association of Political Consultants v. FCC, No. 18-1588 (4th Cir. 2019).

2015 turned out to be a big year for First Amendment challenges to the TCPA. That is when Congress enacted the government-backed debt exception to the TCPA and the Supreme Court decided Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). The government-backed debt exception meant that calls placed by a private debt collector to collect debt owed to or guaranteed by the government are exempt from the TCPA, but calls from the exact same debt collector (or creditor) not so owed or guaranteed are subject to the TCPA.

The Fourth Circuit held, in a facial challenge to the TCPA’s constitutionality, that the government-backed debt exception renders the TCPA a content-based regulation. That is significant. A few district courts have reached that conclusion, but the Fourth Circuit is the first appellate court to do so. And in doing so, it rejected the argument that the government-backed debt exception regulates based on the relationship of the debtor and creditor, not the content of the speech. As the Fourth Circuit correctly held, the statute does not regulate based on a relationship at all. Instead, the exemption turns on whether a caller asks for payment on a government-backed debt versus a purely private debt – in other words, the content of call, not the relationship between the caller and called party.

Because the government-backed debt exception creates a content-based restriction, the TCPA is subject to strict scrutiny. Thus far, it has survived district court challenges based on an asserted compelling interest in “personal and residential privacy.” The Fourth Circuit made quick work of that argument. It held that, under Reed v. Town of Gilbert, the government-backed debt exemption itself has to serve a compelling interest and be narrowly tailored to that interest, not the statute as a whole. The court ultimately held that the exemption is not narrowly tailored to the asserted privacy interest.

Thus, in a first-in-the-nation result, the Fourth Circuit held that the TCPA is an unconstitutional, content-based restriction on speech.

So far, so good.

But unfortunately, the Fourth Circuit then turned to the severability issue and probably got it wrong. The court held that the TCPA can be saved by severing the government-backed debt exception. The court thus held that the way to save a statute that violates the First Amendment is to prohibit more speech.

Severability is often the correct course of action when only part of a statute is unconstitutional. But as multiple courts have held, that is not the case when severing a statute would result in prohibition of more speech. Ninth Circuit judges made that point several times in the Gallion argument. When a statute is a facially underinclusive, content-based restriction on speech, the remedy is to strike the entire statute, not prohibit speech that Congress plainly intended to allow. Otherwise, you have the odd result of a court prohibiting speech against the wishes of elected officials.

The Fourth Circuit’s decision does have two significant limitations that open the door for future First Amendment challenges. The first is that it only addresses a facial challenge, meaning that TCPA defendants can still attack the statute on an as-applied basis, even in the Fourth Circuit. The second is that the court declined to address the argument that FCC’s regulatory exemptions were also content-based because the plaintiffs disclaimed any intent to pursue it below. That limitation is very significant, because the various FCC’s regulatory exemptions allow defendants to challenge outright prohibitions on speech versus less-restrictive regulation applicable to certain types of content. Challenges properly raising that argument are currently working their way through lower courts.

Stay tuned, folks. The immediate take away from the case is that defendants in the Fourth Circuit are not able to rely on the government-backed debt exception. But although American Association of Political Consultants is significant, it is by no means the last word on the constitutionality of the TCPA. And the Ninth Circuit’s apparent reluctance to sever the statute in a manner that would restrict more speech just gained even more significance.

As always, we have you covered.

—

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.  

Debt collectors are seeing a rise in bots used by consumers that are designed to waste a phone agent’s time. It’s not surprising that technology like this has evolved considering the illegal robocalls that plague us all. (Editor’s Note: Just yesterday, I received repeated calls from my own phone number where an automated voice informed me that my software license from a well-known company was about to expire.) Illegal robocalls are frustrating, so it’s a natural tendency to want to frustrate these callers right back.

[article_ad]

The problem is that these time-wasting apps are being used on more than just illegal robocallers who are trying to scam consumers—they are being used against legitimate businesses that are trying to reach their customers, such as debt collectors.

How Time-Wasting Apps Work

This varies from app to app, but generally the app will allow the consumer to pass the call to an automated bot. The bot is designed to ask an endless cycle of somewhat relevant, extremely vague questions to keep the caller engaged, but ultimately the call goes nowhere.

Take, for example, Jolly Roger. According to its website, it has been featured on many large media outlets. Jolly Roger advises its users to answer calls and dial its bots into a three-way conference call. Jolly Roger’s bots will then take over the conversation. What ensues is a lot of wasted time as the agent tries to maintain a conversation with someone (or, more apporpriately, something) they think is the consumer.

While this is all fun and games when used against illegal robocallers, it frustrates a legitimate call center’s business. Debt collectors have a tough job as it is; these apps make their job even harder by wasting their valuable time.

Awareness is Key

The first step toward a solution is awareness. Businesses can’t address an issue if they don’t know it exists.

One way to remain aware of issues such as this is to stay plugged into the industry. insideARM offers peer calls through the iA Research Assistant, where you can candidly discuss questions among a group of industry colleagues on a monthly basis. These conversations are moderated by iA’s own Mike Bevel, and handcrafted to meet the specific needs of participants. Another great tool is insideARM’s ARM Insider newsletter, which provides in-depth analysis on industry news straight to your inbox.

It’s also important to listen to the agents, especially seasoned ones. They are the boots-on-the-ground and are usually the first to notice when a new trend is occuring.

Train Your Agents

Debt collectors are no strangers to baited calls, where the caller—usually accompanied by his or her attorney—attempts to trick the agent into a violation of the many laws and regulations that govern the industry. Just as debt collection agencies have trained their agents to spot and appropriately respond to baited calls, the same strategy should be used for these time-wasting apps.

One way to train agents to spot these calls is to demonstrate how these apps work and play examples of recordings so the agents can hear what these calls sound like. Jolly Roger’s website has a library of recordings. Other apps likely have something similar. If not, samples could probably be found online through a quick online search.

In one way, dealing with time-wasting apps is easier than dealing with baited calls because there is little risk to hanging up on a bot. However, since these bots are designed to sound like real people, it’s vital that the agent is certain he is hanging up on a bot rather than the actual consumer.

Seasoned agents are generally better at spotting these things. They’ve placed so many calls that it is more readily apparent to them when something feels “off.” Newer agents might have more difficulty, so ensuring that they get an appropriate level of training is important.

AI is Already Here

Artificial intelligence (AI) for the debt collection industry is already here and being deployed in many ways to help businesses run more efficiently. iA’s Innovation Council is working towards finding innovative solutions to challenges faced by the industry. In an ideal world, an AI solution to the time-wasting app issue is best. A machine would likely detect another machine much faster than a human would, especially if the machine is designed to listen for the specific scripts and recordings used by these bots.

Conclusion

In a call center environment, an agent’s time is important and valuable. Time wasted on one of these apps might not be earth-shattering, but it does cause a large enough inconvenience and disruption to make it an important issue to address.

JACKSONVILLE, Fla. — ERC, a global BPO and Collections company, was featured at Jax Tech’s quarterly FinTech conference, held at the Museum of Science & History on March 21. Highlighting technology and innovation, Jax Tech brings together leading innovators to learn, share and collaborate. This particular event focused on financial technology, commonly referred to as FinTech.

There, ERC’s President and CEO, Marty Sarim, and Chief Technology Officer, Christopher Wolff, shared how ERC is investing in groundbreaking technologies to transform the Collection and BPO industries.

“Technology has been a cornerstone of ERC, and that’s something we’re really proud of,” said Marty Sarim, ERC’s President and CEO.

One of the first to use data for segmentation and modeling in the financial recovery field, ERC uses their Edge Team—a think tank designed for dreaming up tomorrow’s innovations—to gain a competitive edge and deliver better results for their clients.

[article_ad]

One of the Edge Team’s initial concepts was EVA, ERC’s new virtual agent. Using machine learning and advanced artificial intelligence, EVA specializes in inbound calls and can assist with wrong numbers, wrong parties, payments and specialty accounts, such as dispute and fraud. The state-of-the-art agent is the first of its kind in the accounts receivable management industry and is fluent in both English and Spanish.

“A whole lot of work went into building application programming interfaces that can communicate with our system, so when EVA is talking to a customer, she’s able to fulfill whatever needs they have,” said Christopher Wolff, ERC’s Chief Technology Officer.

ERC is also using machine learning to improve mailing and dialing strategies. The technology analyzes data to make mailing more efficient and cost-effective, while their dialer strategy program analyzes approximately 4 million calls a day to reduce agent wait times and call times by 20-30%.

Always looking ahead, the global BPO is already working on future innovations. Upgrades to EVA will enable her to handle even more tasks, such as outbound calls and real-time Q&A. Virtual employee training is also on the horizon. This will allow for on-site retesting and larger scalability, with less reliance on traditional classroom training.

“We want to keep on top of it and keep moving the ball, so we always have that competitive edge,” added Wolff.

To learn more about the event, watch this quick video.

About ERC

ERC is an agile, technology-driven company that provides business process outsourcing (BPO) and account recovery services for Fortune 500 companies. ERC leverages the latest innovations in technology while providing extraordinary workforce resources to deliver unparalleled end-to- end customer experience solutions, making ERC a top performer for its clients. With offices spanning four continents and the best talent in the business, ERC is dedicated to changing the BPO landscape through its continued investment in artificial intelligence and data analysis, and its commitment to creating a highly trained, empowered workforce.

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

If you are like me, you cheered when you read the Federal Communications Commission (FCC) is coming out with a reassigned mobile phone number database. Visions of daily scrubs against a free public database of mobile phone numbers supported by carriers across the land danced in my head. But alas, such is not the case. Although the new database will have tremendous value, it is value that will come with a price. 

Why We Should Care

If there is one thing we know for sure about the Telephone Consumer Protection Act (TCPA), particularly in the wake of ACA vs. FCC, it is the sad truth that the “one free call” rule no longer exists. This means without exception, and until further clarification is provided, in order to comply with the consent requirements of the TCPA when autodialing, text messaging, leaving a prerecorded message or using an artificial voice to contact a consumer via their mobile phone, callers using mobile numbers must in fact contact only those consumers from whom they have express consent. There is no room for error.

[article_ad]

The FCC’s Solution

According to the FCC, each year, over 35 million numbers in the United States are disconnected and become available for reassignment to new subscribers. Few disagree that the failure to promptly identify these reassignments poses significant issues for the calling parties who will inevitably call a person to whom the number has been reassigned, but who did not grant consent. Recognizing callers must have confidence that the number they are using is associated with the consumer who actually granted the consent, the FCC embarked on a two-year study of the reassigned number dilemma.

In December of 2018, the FCC approved the roll out of a mobile phone database of deactivated phone numbers. For those who are unfamiliar with the term “deactivated;” the term means turned off or disabled. In this context, a carrier turns off or deactivates a mobile phone number when, for example, a person relinquishes their phone number to their carrier to take advantage of a discount. When this happens, the carrier will categorize your old number as deactivated and reassign the number to a new consumer.

Mandatory Participation by Voice Service Providers

While several private companies in the marketplace can confirm numbers as being currently assigned to a particular person, the FCC observed these commercial databases do not contain information on every mobile phone number. This is because currently voice service providers who assign numbers to their subscribers are not required to report this information to a centralized database. In contrast, the FCC’s new, mandatory data reporting obligation will be imposed on all carriers and voice providers, including wireless, wireline, and interconnected VoIP providers who obtain numbering resources from the North American Numbering Plan Administrator (NANPA).

How it Works 

Voice service providers will need to report deactivated mobile phone numbers to the database administrator each month. They will also have to establish a minimum “aging” period of 45 days after permanent disconnection. After waiting 45 days, the number is eligible for reassignment. The FCC stated that a minimum aging period longer than a month would permit permanent disconnections to be reflected in the new database as providers report this information to the database administrator monthly.

Access to the database will be available to callers large and small. Low-volume access will be available through a website interface. High-volume access will be made available for batch processing through standardized interfaces. The Order also recognized that callers may want to use third-party contractors as their agents, and the FCC will allow third-party contractors access to the database on request.

Not a Panacea

Callers will pay a fee for access to the database. Yet it is too soon to predict the cost of access via the web interface or batch processing. Issues regarding the security of the database and the management of the high volume of transactions could cripple the database even before it even launches. While the FCC estimates the build out of the database will take a year, many expect it could take as long as two. In the meantime, callers are well advised to use commercial scrub services to increase their likelihood of contacting consumers for which they have obtained consent using their mobile phone numbers.

As we have mentioned before at TCPAWorld, drafting clear arbitration agreements, broad enough to cover all future disputes, is critical in consumer contracts. Failure to do so can lead to a jury trial on the issue of arbitratbility or, worse, outright denial of arbitration and the prospect of a class action lawsuit. Today brings such a cautionary tale from the District of New Jersey. See Abedi v. New Age Med. Clinic, No. 18-14680, 2019 U.S. Dist. LEXIS 67903 (April 18, 2019). The court held that the arbitration agreement at issue is ambiguous as to whether it covers TCPA claims, meaning that arbitrability must be resolved on a summary judgment standard or, if necessary, at trial.

The defendant in Abedi operated a new age medical clinic but allegedly engaged in a rather old school form of marketing: telemarketing and mass texting. The plaintiff purchased a Groupon for the defendant’s services (not how I would choose a doctor, but I digress) and, at some point in the process, agreed to the following arbitration agreement:

“Article 1: Agreement to Arbitrate: It is understood that any dispute as to medical malpractice, that is, as to whether any medical services rendered under this contract were unnecessary or unauthorized or were improperly, negligently or incompetently rendered, will be determined by submission to arbitration pursuant to New York law, and not by a lawsuit or resort to court process except as New York law may provide for judicial review of arbitration proceedings. Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law before a jury, and instead are accepting the use of arbitration.

Article 2: All Claims Must Be Arbitrated: It is the intention of the parties that this agreement shall cover all claims or controversies whether in tort, contract [*5]  or otherwise, and shall bind all parties whose claims may arise out of or in any way relate to treatment or services provided or not provided by the below identified physician, medical group or association, their partners, associates, associations, corporations, partnerships, employees, agents, clinics, and/or providers (hereinafter referred to as “Physician”) to a patient, including any spouse or heirs of the patient and any children, whether born or unborn, at the time of the occurrence giving rise to any claim. In the case of any pregnant mother, the term “patient” herein shall mean both the mother and the mother’s child or children.

The filing by Physician of any action in court by the Physician to collect any fee from the patient shall not waive the right to compel arbitration of any malpractice claim.”

The Court held that the agreement is ambiguous in that it could plausibly be read as limited to medical malpractice claims and, therefore, not cover TCPA claims. It’s easy to see how the court got there. Article 1 deals exclusively with medical malpractice. And although Article 2 contains broader language, it still refers specifically to claims arising out of treatment. TCPA claims can certainly give you heartburn, but they are not medical malpractice claims.

The defendant still has a chance of compelling arbitration and, thus, avoiding a putative class action in federal court. But to do so, it will have to prove that the arbitration agreement covers TCPA claims through either a summary judgment standard or, potentially, at an actual trial. Given some of the comments the judge made in the order denying the motion to compel, that could be difficult.

The upshot is that it is not difficult to avoid the pickle in which the Abedi defendant finds itself. Courts routinely enforce arbitration agreements that cover “all claims” – without limitation – against TCPA claims. So the lesson from the case is clear: make sure to use broad arbitration agreements in consumer contracts, not agreements tailored specifically to the claim you expect to most likely face. Doing so is particularly important for companies that will re-target past customers with telemarketing calls or texts. You may not have the TCPA in mind when setting up a new age medical clinic, but if telemarketing is going to be part of your marketing strategy, it is vital that your arbitration agreements cover it.

—

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.  

NORTHBROOK, Ill.–The Bureaus, Inc. is thrilled to announce their sponsorship of the Inspire Greatness Gala, hosted by Special Olympics Illinois. The gala event will take place at the Fairmont Chicago on May 11, 2019.

As a Champion Sponsor, The Bureaus, Inc. is generously donating to help further Special Olympics Illinois’ mission of transforming lives through the joy of sports. Providing year-round training and competition in 17 sports, Special Olympics enhances physical fitness, motor skills, self-confidence, and social skills while encouraging family and community support. Athletes and their families participate in Special Olympics programs free of charge. Special Olympics Illinois is part of the not-for-profit, global Special Olympics organization.

Special Olympics originated in July 1968 at Soldier Field in Chicago, Illinois. At that very first competition, approximately 1000 athletes from the US and Canada competed in a one-day event. Today, over 5 million athletes with intellectual disabilities from across the globe participate in over 100,000 competitions in more than 170 countries each year.

“The Bureaus, Inc. is very excited to support Special Olympics Illinois and the life-changing effects that participation has on the athletes, empowering them with feelings of confidence, acceptance, and accomplishment,” says Marian Sangalang, Vice President of The Bureaus, Inc. “The passion and positive spirits of these dedicated and talented athletes inspire us to be our best every day. Our support of the Inspire Greatness Gala will help to provide important opportunities for the athletes and their families while sharing the message of inclusion within our communities.”

Get more information on the Inspire Greatness Gala or Special Olympics Illinois. You can help by becoming a volunteer, sponsor, or coach. Learn more about Special Olympics Illinois at www.soill.org and the global Special Olympics organization at www.specialolympics.org.

About The Bureaus, Inc.

The Bureaus, Inc. is a master servicer for accounts receivable portfolios. Using cutting edge technology, internally developed proprietary tools, and the vast expertise of its management team, The Bureaus, Inc. is certified by the Receivables Management Association International (RMAI) as a Certified Receivables Business (CRB). The combine technological strategies with data mining capabilities to identify opportunities not usually found by other asset management firms. Founded in 1928, The Bureaus, Inc. is located in Northbrook, Illinois.

About the Special Olympics

The Special Olympics changes the lives of people with intellectual disabilities by creating a new world of inclusion and community across the globe. Special Olympics is a global movement where every single person is accepted and welcomed, regardless of ability or disability. The Special Olympics organization was founded in 1968 in Chicago, Illinois.

The Consumer Financial Protection Bureau (CFPB or Bureau) announced today that it is changing its policy regarding Civil Investigation Demands (CIDs). The Bureau will aim to provide clarity within the CIDs regarding what provisions of law may have been violated and which business activities are subject to the CID. Additionally, “where determining the extent of the Bureau’s authority over the relevant activity is one of the significant purposes of the investigation, staff may specifically include that issue in the CID in the interest of further transparency.”

The Bureau mentions this policy change is made to reflect recent court decisions and comments received by the Bureau in the Request for Information about its investigative activities, which was issued in January 2018.

insideARM Perspective

The Bureau is consistently moving away from the old “regulation by enforcement” days and showing its commitment to ensuring the rules of the road are clear to give companies a fair shot at compliance. Last week, the Bureau announced that it would be hosting a symposium to clarify the meaning of “abusive acts or practices.” Any day now, the Bureau will release its Notice of Proposed Rulemaking for debt collection, which will provide a much-needed update to the outdated Fair Debt Collection Practices Act. And now, the Bureau with provide more clarity in its CIDs rather than going through what seem like fishing expeditions. It is difficult for businesses to comply with vague requirements or laws that have not modernized with the world; the Bureau’s efforts will help alleviate some of this burden.

Imagine being the lead Plaintiffs in a massive piece of multi-district TCPA class litigation against a large debt collector, only to have that prestigious position ripped from you by the Court compelling arbitration of your individual claims. Well that’s what happened to two lead Plaintiffs in the case of In re Midland Credit Mgmt., Case No. 11md2286, 2019 U.S. Dist. Lexis 65827 (S.D Cal. April 17, 2019) and the result is useful for anyone trying to prove bulk assignment of arbitration rights from a creditor to a downstream collector. (That happens more often than you might think, so pay attention.)

Back in January the Court found two Plaintiffs in the big Midland Credit MDL had agreed to arbitrate their claims against the debt collector by virtue of the terms and conditions of their account agreement with the creditor.  None-to-happy about that ruling, the Plaintiffs gathered themselves and sought reconsideration arguing, inter alia, that the creditor cannot simultaneously retain its rights to compel arbitration and yet assign those rights to the debt collector to enforce the arbitration clause. In weighing the reconsideration motion the Court shrugged at the suggestion, reminding the Plaintiffs that it had never found otherwise. Rather, the Court’s ruling compelling arbitration held solely that the right to arbitrate had been assigned; the court expressed no opinion on whether the creditor could yet enforce the clause against class members simultaneously. And although the Plaintiffs cited case law to the effect that the creditor was, in fact, still enforcing clauses purportedly assigned to the collector that really didn’t matter to the Court because, in its view, it simply was not called upon to consider the issue of the creditor’s right to enforce the clause; i.e. if those other courts got it wrong as to the creditor’s rights that’s neither here nor there as to the collector’s rights in this action.

Interesting stuff, no?

Plaintiffs also launched a robust factual challenge asserting that Defendant had not proven that the right to arbitrate had been assigned to it in the first place. It challenged the Court’s reliance on affidavits and a Purchase and Sale Agreement—apparently only lobbed at the court with the Defendant’s reply—as unfairly prejudicial and insufficient to prove the assignment. The Court brushed off the unfairness argument, noting that Plaintiff had challenged the assignment in Opposition opening the door to additional evidence in reply. (If Plaintiffs didn’t like it they could have sought a surreply). And as to the foundation challenges, the court felt that the sum total of the evidence of several declarations plus the asset assignment agreements were sufficient to demonstrate that right to arbitrate was assigned. Importantly, the court suggests—but does not directly hold—that declarations alone might be sufficient to establish the assignment without consideration of the underlying purchase agreements—“Courts have found sufficient evidence of assignment without review of purchase and sale agreements in similar circumstances.”

So there you have it. Declarations asserting that rights were assigned might be enough in and of itself to prove the right of the collector to enforce the clause. But, then again, it is probably a good idea to have that asset purchase and transfer agreement handy and properly authenticated in the first instance so you don’t have to introduce it in a reply brief or otherwise draw an evidentiary challenge down the line. (Best evidence rule anyone?)

Also interesting, the Court denied Plaintiffs’ request for interlocutory appeal finding that arbitration would materially advance the conclusion of the parties case, whereas a denial of arbitration would not. By this logic—which I really enjoy and support—it seems that an order granting arbitration in a class case might never qualify for interlocutory review. Something to keep in mind TCPAWorld.

—

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.

Last Tuesday the Court of Federal Claims (COFC or the Court) heard arguments in the case of FMS Investment Corp., (FMS) et al., v. United States (the Department of Education or ED). The plaintiffs are protesting ED’s re-cancellation of Solicitation No. ED-FSA-16-R-0009 for Large Business Debt Collection Services. They claim the Department of Education had no rational justification for cancelling the procurement.

The April 16^th hearing was related to a motion for preliminary injunction to prevent ED from recalling all remaining accounts from four large private collection agencies (PCAs) that still hold Award Term Extensions (ATEs) from a prior contract that ended in 2015.

The Solicitation to award new large PCA contracts has been under protest for nearly five years. For a condensed background on the case, read this article and then this article.

The recall of these accounts would, for practical purposes, be a nail in the coffin for these firms because it would mean the loss of their Authority to Operate (ATO), which can take up to a year to re-establish, even if they ultimately win their case.

The arguments articulated were essentially the same as those outlined in this article on April 8^th. In short, the plaintiffs argued:

• ED’s new “high-touch” plan to avoid loan delinquencies violates state law.
• Bundling servicing and default is illegal
• Calling under an inaccurate name is illegal under the Fair Debt Collection Practices Act.
• ED’s calculation of small business PCA capacity lacks rigor.
• ED’s calculation showing collection rate by “smalls” is as good as or better than “larges” is grossly misleading.
• Recall of the “in-repayment” accounts will cause harm to borrowers because of the confusion that will be caused by the transition.
• The Solicitation for large PCA services was cancelled in bad faith.

On behalf of ED, the Department of Justice argued:

• The PCAs want expiring contracts to not expire.
• They want to extend something that’s expiring while waiting for something else to happen.
• Nobody is protesting the terms of the (ATE) contract – so that contract should be allowed to play itself out.
• The PCAs’ complaints are predicated on getting new contracts. It’s unprecedented for the Court to order ED to give a contractor a contract.
• The Secretary of Education has said default collections are not working. The Senate has said default collections are not working. The Department is trying to do something. It’s hard. There will obviously be some bumps, but we’re trying to reconfigure how services are aligned and how people are paid to make it work better for borrowers and companies.
• It’s a 2015 procurement. We’re going in a different direction. The idea that the old way of operating is supposed to exist forever is irrational.

Both sides accused the other of manipulating numbers to suit their arguments.

Following a hearing of approximately three hours, the Court denied the motion. Although Judge Wheeler has signaled in the past that the plaintiffs may in fact succeed on the merits of their case, he felt it was outside the scope of his authority to essentially order ED to extend a contract.

So, now what?

The ATEs expired yesterday, so the Department will likely proceed with the recall immediately.

And, the case continues. Because the Court has not yet ruled on whether the Solicitation was illegally cancelled. In order to proceed, the parties have been waiting for a public version of the Administrative Record (AR) to be released by the Department. On Friday, following the denial of the preliminary injunction, the following briefing schedule was set:

By May 3, 2019 – ED to file public version of the AR

By May 20, 2019 – Plaintiffs to file Motions for Judgment on the AR (MJAR)

By June 6, 2019 – ED to file Opposition and/or Cross-MJAR

By June 20, 2019 – Plaintiffs to file Replies and/or Opposition to Cross-MJAR

By July 5, 2019 – ED to file Reply

insideARM Perspective

This is a tough blow to these large PCAs, who at one time had hundreds of employees working on the federal student loan contract. Upon completion of this recall, they will have zero. There is no doubt that the last five years have done irreparable harm to these firms.  Small PCAs will likely have to expand their use of subcontractors in order to take on additional volume, so some may be able to reconstitute a portion of their business in this way. Even if they ultimately prevail in court, it’s unclear what would happen next…another round of bids? Selection based on what criteria? More protests?