ROCKVILLE, Md. — The iA Institute (iA) announced today its 2019 Innovation Council technology members. The iA Innovation Council meets together with the Consumer Relations Consortium (CRC) during each of its three annual meetings in Washington, DC, and also pursues initiatives throughout the year. The goal of the Council is to advance the adoption of modern, efficient and consumer-friendly technologies within the collections landscape.

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“This is the place where forward-thinking industry leaders gather to push beyond the limits of where we are today to envision the future of collections,” said Stephanie Eidelman, CEO of iA and founder of the Innovation Council. “What will the connection between creditors and their agencies look like? What will communications between agencies and consumers look like? This is a collaborative sport. No one company can make the entire leap on its own.”

Over the past five years, the CRC has engaged with consumer groups to promote a better understanding among all stakeholders, and regulators with a primary goal of impacting debt collection rulemaking. As the Notice of Proposed Rulemaking is expected from the Consumer Financial Protection Bureau this spring, our work is not done — but it will move to a new phase. Greater regulatory clarity will bring faster adoption of technology. To proactively promote and facilitate this advancement in technology, the Innovation Council provides a platform for educating stakeholders and a space that fosters customer input, collaboration, and advancement of ideas.

The following technology organizations have been selected to participate in the 2019 Innovation Council:

Leaders of these firms will partner with the forward-thinking CEOs, chief strategy, operations, technology, legal and compliance leaders of CRC member creditors, collection agencies and debt buyers to dive below the surface, uncover the real issues, and produce substantive solutions.

About the iA Institute

The iA Institute (iA) is a media company that produces handcrafted news, education, events and connection for the consumer and commercial credit & collections industry. The iA team believes that the value of your investment in our content should be undeniable, so we thoughtfully design everything we do with a focus on the details that make a difference.

iA manages insideARM, the iA Research Service, the Best Places to Work in Collections program, the Consumer Relations Consortium (CRC) & Innovation Council, and events like the Commercial Strategy Workshop, the First Party Summit and Women in Consumer & Commercial Finance. More at theiAinstitute.com.

Reassigned number liability remains shaky ground in the wake of ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), with the D.C. Circuit vacating the interpretation of “called party” and the one-call safe harbor. But all hope is not lost: Reasonable reliance remains a viable defense for those defendants who may have made a call or sent a text or fax to a reassigned number based on the prior subscriber’s consent. 

Just last week, the court in AMP Automotive, LLC v. B F T, LP, 2019 U.S. Dist. LEXIS 52793 (E.D. La. Mar. 28, 2019), denied summary judgment to the plaintiff in a junk fax case after finding that a question of fact remained as to whether the defendant had reasonably relied on the prior express consent of the fax number’s previous owner. The plaintiff alleged that the defendant Great American Business Products “blasted thousands of junk faxes” in violation of the TCPA and argued that Great American could not fulfill its burden to establish a consent defense. 

The parties did not dispute that Great American did not have the plaintiff’s prior express consent. But Great American contended that the faxes at issue were solicited—and thus not a violation of the TCPA’s Junk Fax Prevention Act—because the faxes sent to the number reassigned to the plaintiff had been directed to a recipient that had given Great American prior express permission. The plaintiff argued in turn that Great American still could not establish consent because it did not retain or provide records of any recipient’s permission to send the faxes. 

Though noting “telephone numbers and fax numbers are not the same,” the court referred to the 2015 FCC Order as a guide for “the general inquiry of reassigned numbers.” The court cited to the one-call safe harbor as evidence that the FCC’s interpretation of prior express consent encompasses reasonable reliance whether applied to a caller or to the sender of fax. The court accordingly denied summary judgment to the plaintiff because “a reasonable juror could find that [the prior owner of the fax number] gave express prior consent and that Great American reasonably relied upon that consent.”

AMP Automotive is welcome authority for defendants grappling with consent defenses in the reassigned number context. Given the court’s discussion of the FCC’s general embrace of reasonable reliance, AMP Automotive can, and should be, extended beyond the junk fax context and applied to the TCPA more generally. The court’s recognition of a viable reasonable reliance defense gives TCPA defendants solid ground when they unknowingly send calls, texts, or faxes to numbers reassigned to a non-consenting recipient.

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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.  

On March 29, 2019, the Consumer Financial Protection Bureau (CFPB or Bureau) published its 2018 Consumer Response Annual Report. According to the report, Consumer Response’s role is to “analyze[] consumer complaints, company responses, and consumer feedback to assess the accuracy, completeness, and timeliness of company responses so that the Bureau, other regulators, consumers, and the marketplace have relevant information about consumers’ challenges with financial products and services.”

Here are the three main take-aways from the report.

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1. Credit Reporting Complaints on the Rise, Debt Collection Complaints Decreasing

In 2018, the CFPB received 329,800 consumer complaints. In line with the Bureau’s Fall 2018 semi-annual report (published in February 2019), credit and consumer reporting complaints remain dominant, followed closely by debt collection complaints.

However, the most recent report shows that complaints for these two products are trending in opposite directions. In 2018, the Bureau received approximately 126,000 complaints about credit or consumer reporting, a 27% increase from 2017. On the other hand, debt collection complaints — which accounted for 81,500 of 2018 complaints — decreased by 3% from 2017.

2. Debt Collection is the Primary Complaint of Older Consumers

The 2018 report breaks down the complaints by product for certain vulnerable groups, such as servicemembers and older consumers. The breakdown of complaints by type for servicemembers largely followed that of non-servicemembers: credit or consumer reporting complaints were most prevalent, followed by debt collection complaints.

When complaints for older consumers were viewed in isolation, a different pattern emerged. For consumers aged 62 or older, debt collection received the most complaints (23%), followed by credit or consumer reporting (21%). Interestingly, complaints about mortgages made up a significant portion (19%) of 2018 complaints for older consumers — compared to a much smaller percentage (9%) of overall 2018 complaints.

Editor’s Note: This, taken in tandem with the Bureau’s recent report about the rise in elder financial exploitation, might indicate a direction of focus for the CFPB. Since debt collection complaints make up the highest percentage of complaints for older consumers, debt collectors should revisit their policies and procedures to ensure they are able to detect and appropriately respond to signs of elder financial exploitation.

3. CFPB Recognizes Limitations in Complaint Data

The issue of generalized complaint data has long been discussed in the industry, and it seems the Bureau is taking note. The current report states that complaint data derived solely from exhaustive lists of selections (such as product, sub-product, issue, and sub-issue) places limitations on analysis without context or other data. As quoted in the report:

Given these and other considerations, the Bureau has not yet identified an approach to contextualize multiple products, services, and markets without imposing a significant burden on companies to provide data. Nevertheless, because context is important, throughout this section the Bureau references publicly available data and research, where available, that provides some market context. The Bureau also continues to welcome specific suggestions and best practices about how to publish information about complaints.

In her opening message in the report, CFPB Director Kathy Kraninger references two Requests for Information (RFI) issued in 2018 regarding (1) complaint reporting practices and (2) complaint and inquiry handling. Kraninger writes that the comments from the RFI “will inform how our complaint program will evolve and how we will serve and interact with the program’s various stakeholders, including consumers, companies, and other regulators.”

The above seems to illustrate Director Kraninger’s commitment to the message she has consistently stated since she took over leadership of the Bureau in 2018:

For America’s financial system to run successfully, consumers should be treated fairly, financial institutions that serve them should have a level playing field on which to compete, and the marketplace should innovate in ways that give consumers more choices and meet their needs.

In the midst of chaos over the proper definition of the statutory term “automated telephone dialing system,” the Northern District of Illinois reminds us that the plain language of the TCPA still matters.  In granting summary judgment to AT&T in Gadelhak v. AT&T Servs., No. 17-cv-01559 (March 29, 2019), the Court found that AT&T’s texting system did not qualify as an ATDS because the system did not “store” telephone numbers “using a random or sequential number generator” as the numbers were dialed from a predetermined list.

The lawsuit arose from AT&T survey texts sent to customers who had engaged in qualifying transactions with a customer service representative.  The plaintiff filed a putative TCPA class action against AT&T alleging that he received 5 survey text messages from AT&T in Spanish—though he was not a customer of AT&T or any of its affiliates, did not speak Spanish, and had registered his phone number on the DNC Registry.

AT&T maintained that its system was only designed to text AT&T customers and that the plaintiff’s number “must have been erroneously listed” on an account.  The record evidence revealed that AT&T’s computer system would first identify all phone numbers on accounts with customer-service transactions, send the list of phone numbers to marketing for processing, and then whittle the list down to only the first cell phone number listed on the relevant accounts.  AT&T’s vendor would send the text-message surveys out to this reduced list of cell phone numbers.

The parties cross-moved for summary judgment, with the primary issue being whether AT&T used an “automatic telephone dialing system” in sending texts to the plaintiff and putative class members.  The court framed much of its opinion around the D.C. Circuit’s decision in ACA International in determining the proper definition of an ATDS and the status of prior FCC orders on the definition.

The court first held that ACA International vacated not only the 2015 FCC Order’s interpretation of an ATDS, but also the interpretations in the prior 2003 and 2008 FCC Orders.  The court noted that, in vacating 2015 Order’s interpretation of autodialer,  the D.C. Circuit referred generally to all “pertinent pronouncements” and to the FCC’s “prior rulings.”  The court also reasoned that the 2003 and 2008 FCC Orders were plagued by the same problems as the 2015 FCC Order—they failed “to satisfy the requirement of reasoned decisionmaking” because 2015 FCC Order reaffirmed the previous pronouncements defining autodialers overbroadly to include equipment that can dial automatically from a given list of numbers without the capacity to generate numbers either randomly or sequentially.

Hitting the nail on the head, the court framed the issue on summary judgment as “whether predictive-dialing devices that lack the capacity to generate numbers either randomly or sequentially, and instead only dial numbers from a predetermined list, meet the statutory definition of ATDS.”  The court agreed with AT&T in answering a resounding “no.”

Finding the FCC’s prior interpretations vacated, the court conducted a statutory analysis, with a bit of a grammar lesson sprinkled in, to conclude based on the plain language of the TCPA that random or sequential number generation is a requirement for any autodialer, and significantly, “the numbers stored by an ATDS must have been generated using a random or sequential number generator.”  But it gets better:  the Court “respectfully disagree[d]” with the reasoning in Marks v. Crunch San Diego, 904 F.3d 1041 (9th Cir. 2018), in which the Ninth Circuit held that equipment could be an ATDS either by (1) storing numbers to be called or (2) producing numbers to be called, using a random or sequential number generator.  Rejecting Marksholding, the Court found,“[t]he most sensible reading of the provision is that the phrase ‘using a random or sequential number generator’ describes a required characteristic of the numbers to be dialed by an ATDS—that is, what generates the numbers.”  In other words, Court held that AT&T’s system could not qualify as an ATDS because it generated a list of phone numbers through a computer process associated with customer files, and the numbers stored in those files were not generated using a random or sequential number generator.  The court rejected the plaintiff’s argument that AT&T’s system texted phone numbers in a “random” order, thus triggering the ATDS definition.  Relying on ACA International, the Court observed that the phrase “random or sequential” would be “meaningless” if it referred to the order of calls rather than to the order of the digits in a phone number because any list of numbers “must necessarily ‘be called in some order—either in a random or some other sequence.’”

The Gadelhak is a welcome decision that gives some much-needed credence to the TCPA’s statutory text, specifically the phrase “using a random or sequential number generator.”  Departing from the Marks progeny of cases holding the FCC’s 2003 and 2008 Orders are set aside but that the statutory definition does not require random or sequential number generation, the District Court in the Northern District of Illinois agreed that the 2003 and 2008 orders are indeed toast because they failed to satisfy “reasoned decisionmaking,” but on the definition of an autodialer, the Court (rightfully) rejected Marks’expansive definition by holding that an ATDS must store numbers that have been generated “using a random or sequential number generator.”  Where did the Court get this novel theory?  The plain language of the statute, of course!  As courts continue to grapple over the ATDS definition, and until the FCC weighs in, we’ll be keeping score on the ever-elusive ATDS definition.  Check out our Rolling ATDS Review here.

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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.  

ROCHESTER, N.Y. — Continental Service Group, Inc., d/b/a ConServe embraces giving back to the community; “helping to improve the human condition” is a key component of their corporate mission statement. The concept of paying it forward and giving back to those less fortunate or burdened with some of life’s most difficult challenges is infused into the corporate culture.

As a means of expressing their kindheartedness, the employees at ConServe, in conjunction with the company’s “Matching Gift Program,” work together to make an impactful difference in people’s lives. Through their ongoing philanthropic program, “Jeans for Charity,” ConServe employees can elect to participate in monthly charitable donations in exchange for the option of wearing jeans to work. Their company-wide charity program allows both the employees and the organization as a whole to support their diversified community investment plan. Employees not only embrace ConServe’s mission of fostering relationships within their community, but also take pride in doing the right thing, at the right time, the right way.

In the month of March, the ConServe team made donations to Ibero American Action League and to the Big Brothers Big Sisters (BBBS) of Greater Rochester, Erie, Niagara and the Southern Tier. Dorothy Kelley, Development Officer at BBBS of Greater Rochester said, “we are delighted by the generosity of ConServe! Because of this contribution, more children will now be able to experience the incredible benefit of having a mentor in their lives.” Thomas J. Guagliardo, CEO of BBBS of Erie, Niagara and the Southern Tier also said, “we believe that children have incredible potential, and the money donated will help defend and ignite that potential. Together, we can help clear the path to the biggest and brightest possible futures for more children facing adversity in our community.”

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About ConServe

ConServe is a top-performing and award-winning provider of accounts receivable management services specializing in customized recovery solutions for our Clients. Anchored with ethics and compliance, and steadfast in our pursuit of excellence, we are a consumer-centric organization that operates as an extension of our Client’s valued brand. For over 33 years, we have partnered with our Clients to give them peace of mind while simultaneously helping them achieve their goals.

Visit us online at: www.conserve-arm.com

About Big Brothers Big Sisters of Greater Rochester

Guided by our mission and core values, Big Brothers Big Sisters will help clear the path to a child’s greatest possible potential. When a volunteer mentor (“Big”) is matched with a mentee (“Little”), a relationship starts to form. Time together builds a bond, trust develops, and the impact becomes significant. A Little sees his or her Big as someone to talk to about problems and fears, goals and dreams. Someone who cares about the science test grade and helps them work through the argument during lunch. A person who introduces new experiences. A role model who has high expectations and believes they can be met. Mentoring changes lives.

Visit them online: www.bbbsr.org

About Big Brothers Big Sisters of Erie, Niagara and the Southern Tier

The mission of Big Brothers Big Sisters of Erie, Niagara and the Southern Tier (BBBS) is to provide children facing adversity with strong and enduring, professionally supported one-to-one relationships that change their lives for the better, forever. Since being founded in 1971, BBBS’ carefully designed mentoring programs have matched over 11,500 children facing adversity with carefully screened, well-trained adult mentors. At the end of the 2017-2018 school year, of the children in a match with a Big Brother or Big Sister, 98.6% were promoted to the next grade level.

Visit them online: www.beafriend.org

About Ibero American Action League

As a dual-language human services agency, Ibero has the unique ability to target multiple audiences in both English and Spanish. They serve individuals and families of all ethnic backgrounds and focus on teaching children, youth, parents and individuals a wide range of life skills to help them do well in school, at home and in the workforce.

Visit them online: www.iaal.org/.org

Debt buyers and their collection agencies should review their accounts’ underlying purchase agreements in the Northern District of Illinois (N.D. Ill.) because a trend is emerging about whether or not debt buyers can collect post-charge-off interest. In a recent decision in Tabiti v. LVNV Funding, LLC, et al., No. 13-cv-7198 (N.D. Ill. Mar. 27, 2019), the court found that the language of the purchase agreement as well as the original creditor’s waiver precluded a debt buyer and its collection agencies from collecting post-charge-off interest.

Factual and Procedural Background

After plaintiff defaulted on his credit card account, the bank charged off the balance. While the underlying credit agreement allowed the bank to collect post-charge-off interest, the bank chose not to do so. According to plaintiff, this was to avoid having to continue sending periodic account statements.

The bank eventually sold the account to a debt buyer. The original purchase agreement — which is the crux of this case — stated as follows:

“Unpaid Balance” means, as to any Account, the total outstanding unpaid balance, as shown on Seller’s books and records as of the last Business Day prior to the File Creation Date (including all amounts due in respect of purchases, cash advances, finance charges, payments and credit adjustments, late fees, return check charges, overlimit fees and all other applicable fees and charges) excluding post charge-off interest.

. . . . 

(a) Purchaser represents and warrants to Seller that Purchaser’s primary purpose in purchasing Charged-off Accounts is to attempt legal collection of the Unpaid Balances owed on such Charged-off Accounts and is not to commence an action or proceeding against Cardholders obligated under such Charged-off Accounts. Notwithstanding the preceding, the Purchaser retains the right to pursue an action or proceeding in the event that reasonable legal collections are not successful in securing a satisfactory payment on the account.

(b) Subject to the terms and conditions of this Agreement, on the Closing Date, Seller will sell, assign and transfer to Purchaser and Purchaser shall purchase all of Seller’s rights, title and interest in and to eligible Charged-off Accounts (which Accounts shall be listed either on a diskette or a spreadsheet to be provided to Purchaser) at a Purchase Price determined by multiplying the total Unpaid Balances of the Charged-off Accounts as of the File Creation Date being sold by Purchase Price Percentage.

(Emphasis added.)

The original debt buyer sold the account to a subsequent debt buyer, transferring “all ownership rights.”

The subsequent debt buyer’s collection agencies sent two letters to plaintiff: One attempting to collect a balance of $11,734.86 in April 2011 and another attempting to collect a balance of $12,108.97 in December 2011. Both letters included a disclosure that the account balance may increase due to interest.

When these attempts to collect were unfruitful, the subsequent debt buyer retained a law firm to file a collection suit against plaintiff. Specifically, the lawsuit sought to recover the purchase balance, which was $10,463.51, plus any additional accrued interest.

Procedurally, there was some back and forth, but ultimately plaintiff claims that the subsequent debt buyer and its collection agencies violated the Fair Debt Collection Practices (FDCPA) because they did not have the authority to accrue and collect post-charge-off interest.

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Court Decision

The court granted summary judgment in favor of plaintiff on the FDCPA claim. The court found that the FDCPA claim “turns on the legal effect of the purchase agreement” between the bank and the first debt buyer. Since the subsequent debt buyer purchased “all ownership rights” of the original debt buyer, the rights that were transferred from the bank to the original debt buyer are what would have transferred to the subsequent debt buyer.

The original purchase agreement transferred “all of the Seller’s rights, title and interest in and to eligible Charged-off Accounts.” (Internal quotations omitted.) Since the underlying credit agreement between the bank and plaintiff allowed the bank to assess and collect post-charge-off interest, defendants argued that this right transferred down the chain of debt buyers.

The court, however, disagreed for two main reasons.

First, the court noted that the definition of “Charged-off Accounts” in the purchase agreement refers to the unpaid balance excluding post-charge-off interest. Another section of the agreement states that its purpose is to attempt legal collection of the unpaid balances, which, read in conjunction with the definition of charged-off accounts, also excludes post-charge-off interest. Read in its entirety, the court concludes that the agreement both contemplated and excluded the transfer of the right to post-charge-off interest.

Second, even if the purchase agreement transferred the right to assess and collect post-charge-off interest, the bank’s “waiver of post-charge-off interest precluded defendants from collecting it.” By ceasing to collect post-charge-off interest — regardless of the reason behind the bank’s decision — the bank effectively waived it. Since the bank could not sell or transfer a right it no longer had, the right to post-charge-off interest did not transfer with the sale.

insideARM Perspective

This is not the first time that N.D. Illinois ruled that an original creditor’s waiver of assessing post-charge off interest precludes subsequent debt buyers from then assessing and collecting the same. Back in September 2018, insideARM published an article about a case called Gomez v. Cavalry Portfolio Services, LLC, which came to a similar conclusion. The rulings in Gomez and here in Tabiti were decided by two different judges within the district, which indicates a trend.

On a side note, these decisions bring back memories of the interest disclosure cases, also known as “reverse-Avila” claims, out of New York. When the Second Circuit heard cases such as Taylor v. FRS and DeRosa v. CAC Financial Corp., a repeated argument on the consumer’s side was that even though the original creditor was not accruing interest at that time, it was not indicative of what would happen with the account in the future. This argument was supported by the language of underlying credit agreements that, similar to this case, allowed the original creditor to assess and collect post-charge-off interest. The lack of consistency — specifically, that consumer attorneys can argue one thing in one jurisdiction and then argue the exact opposite in another and allege both are FDCPA violations — is something that contributes to the litigation dilemma in this industry.

ROCKVILLE, Md. – The iA Institute announced today that Amy Perkins has been promoted to president. In this role she will oversee all operations related to delivery of all iA news and research products, conferences, and our newest division – commercial credit & collections. 

Since joining the company in November 2017, Amy conceived of and launched one of insideARM’s most successful new initiatives – Women in Consumer Finance, a meticulously handcrafted conference that generated unanimously raving feedback.

She also led our 2018 Better Way project within the Consumer Relations Consortium (CRC). This initiative kicked off our effort to design a collaborative roadmap for industry innovation.

In addition, Amy took on the role of planning all content for the insideARM First Party Summit, the only event in the industry focused exclusively on the unique challenges of first-party work, including customer care, collections and outsourcing.

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“Amy is an authentic and genuine leader who connects easily with staff and clients,” said Stephanie Eidelman, CEO of the iA Institute. “Her 20+ year background in collections and strategy at a leading collection agency as well as multiple top-tier banks brings insight and understanding of the challenges faced by our readers and clients. She exemplifies all of our core values, and she has the energy, creativity and vision to help us grow to the next level.”

Amy commented, “It’s an exciting time to be a part of insideARM. We have a clear vision and strategy, backed by an energized and talented staff. I’m grateful to Stephanie and the team for their trust in my ability to help lead the way.” 

About The iA Institute

The iA Institute (iA) is a media company that produces handcrafted news, events, education and connection for the consumer and commercial collections industry. The iA team believes that the value of your investment in our content should be undeniable, so we thoughtfully design everything we do with a focus on the details that make a difference.

iA manages insideARM, the iA Research Service, the Best Places to Work in Collections program, the Consumer Relations Consortium (CRC) & Innovation Council, and conferences like the First Party Summit and Women in Consumer Finance. Learn more at theiainstitute.com.

It’s a question I am asked at every conference I speak at – Is a ringless voicemail subject to the TCPA?

That question was a lot more challenging to answer before last year’s big first-in-the-nation decision in Saunders v. Dyck O’Neal, Inc., 319 F. Supp. 3d 907, 911 (W.D. Mich. 2018)( concluding ringless voicemails are subject to the TCPA at the MSJ phase.)

Since then, TCPAworld has been relatively quiet on the issue. There have been a couple of Article III cases involving ringless voicemails, but nothing else on the ultimate subject of TCPA coverage on such calls.

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Well that quiet was shattered on Monday down in the Southern District of Florida. In Schaevitz v. Braman Hyundai, Inc., Case No. 1:17-cv-23890-KMM,2019 U.S. Dist. LEXIS 48906 (S.D. Fl. March 25, 2019) the court held – at the pleadings stage(!) – that a ringless voicemail is, indeed, subject to the TCPA as a matter of law.

It is unclear to me why the Defendant elected to challenge TCPA’s application to ringless voicemails as a pure legal issue at the pleadings stage, but the challenge did not go well. The court had little problem identifying ringless voicemails as similar to regular voicemail messages, the pre-recorded variety of which have always been found subject to the TCPA. The court also noted that the nuisance attendant retrieving a ringless voicemail is no different from receipt of an unwanted text message or “regular” phone call, as the recipient must stop what they are doing and review their phones to determine the message content. For these reasons – and with a nod to Saunders – the court concluded rather easily that ringless voicemails are subject to the TCPA. No good..

To make matters worse, the court also swiftly reviewed and rejected the Defendant’s Article III standing challenge, concluding that receipt of an unwanted ringless voicemail does, in fact, cause a concrete harm subject to review. And the cherry on top– the Court rejected the Defendant’s First Amendment challenge finding that the TCPA survived whatever level of scrutiny is applied to it. (This last piece is an unsurprising result as no district court has yet had the courage to strike down the TCPA, even applying strict scrutiny–but that’s just what the Ninth Circuit may do in Gallion.) 

For those of you using ringless voicemail, all is not lost–even if the window to defend this technology is certainly closing. I have often remarked that the best path to defending ringless voicemails lies in the statutory language restricting calls delivered to a number assigned to a wireless carrier. Ringless voicemails are typically delivered vis landlines assigned to third-party voicemail providers – not via wireless numbers. For the second time now, however, that argument does not appear to have been raised by a Defendant trying to extract ringless voicemails for TCPA coverage. So we’ll have to wait for the next one to see whether this argument will be tested. Until then, good luck out there TCPAWorld.

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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.

NORWELL, Mass. — EOS USA, a leader in the accounts receivable management (ARM) and business process outsourcing industry, has announced the appointment of Tod Dillon as Chief Executive Officer.

Most recently, Mr. Dillon served as the Company’s Chief Financial Officer and Chief Administrative Officer, and has been with EOS USA since 2010. Previously, he held a variety of senior financial and operational management positions with Fidelity Investments, American Management Systems and Chubb. He received his B.A, magna cum laude, in Economics and Government from Bowdoin College and an MBA from the D’Amore-McKim School of Business at Northeastern University.  In addition to his nearly 30 years of financial services industry experience, Mr. Dillon has been a member of the EOS USA Board of Directors since 2013.

Mr. Dillon commented, “I am honored to have been asked to lead the next chapter of EOS USA’s growth in the United States. To connect the best of our nearly thirty years’ experience in delivering value to our clients with the tremendous global reach of our parent company, The EOS Group, is an unparalleled opportunity.  Thanks to a committed staff who are focused on serving the consumers with whom we work, we are ideally situated to deliver on behalf of our clients and business partners.”

About EOS USA

EOS USA is a leading provider of customer care and receivables management services in the United States, serving the financial services, healthcare, utilities, telecommunication, higher education and government markets. EOS USA is a subsidiary of the EOS Group GmbH, a global leader in the ARM and financial services industry with over 7,000 employees in 26 countries.

On Friday March 21, 2019, as all of Washington awaited delivery of Robert Mueller’s report, The White House issued an executive order about promoting free and open debate on college campuses… and about students’ ability to repay their federal loans .

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The six page order has exactly two paragraphs about free speech; the rest is about increasing transparency around the cost of an education at any given school, a student’s likelihood of being able to pay back loans required to get the education, and what happens when they can’t.

The premise is that better information will help students and their families to choose the right level of education – and the right institution to provide it – based on outcomes experienced by prior students. The ideas presented would force schools to actively participate in a value-based return on investment discussion. Because money to pay students’ tuition virtually grows on trees as far as the schools are concerned, this is a discussion that most don’t have to participate in today.

The broad goals of the order are to:

• Align incentives of institutions with those of students and taxpayers to ensure that institutions share the financial risk associated with Federal student loan programs.
• Help borrowers avoid defaulting on their Federal student loans by educating them about risks, repayment obligations and repayment options
• Supplement efforts by states and institutions by disseminating information to assist students in completing their degrees faster and at a lower cost

Specifically, the order directs the Secretary of Education (Secretary) to:

• Make available, by January 1, 2020, through the Office of Federal Student Aid, a secure and confidential website and mobile application that informs Federal student loan borrowers of how much they owe, how much their monthly payment will be when they enter repayment, available repayment options, how long each repayment option will take, and how to enroll in the repayment option that best serves their needs;
• Expand and update annually the College Scorecard with program-level data for each certificate, degree, graduate, and professional program, for former students who received Federal student aid. Data would include things like estimated median earnings, median Stafford or PLUS loan debt, student loan default and repayment rates. (emphasis added)
• Expand and update annually the College Scorecard with institution-level data, providing the aggregate for all certificate, degree, graduate, and professional programs, for former students who received Federal student aid. Data would include things like: student loan default and repayment rates, and Graduate PLUS and Parent PLUS default and repayment rates. (emphasis added)
• Provide appropriate statistical studies and compilations regarding program-level earnings, consistent with section 6108(b) of title 26, United States Code, other applicable laws, and available data regarding programs attended by former students who received Federal student aid.

The White House suggests that “Access to this information will increase institutional accountability and encourage institutions to take into account likely future earnings when establishing the cost of their educational programs.”

The order also directs the Secretary to make available by January 1, 2020 a secure and confidential website and mobile application that informs borrowers of how much they owe, how much their monthly payment will be when the enter repayment, available repayment options, how long each repayment option will take, and how to enroll in the repayment option that best services their needs.

And, the order specifically calls out collections:

“By January 1, 2020, the Secretary… shall submit to the President… policy recommendations for reforming the collections process for Federal student loans in default.”

The President wants annual updates on the progress towards implementation of the policies in the order starting July 1, 2019.

insideARM Perspective

This is… so interesting. I’ll say upfront that I’m not an expert on Executive Orders. But I’m fascinated by this. I have three immediate thoughts:

First, the timing. The President specifically calls out the collections process for Federal student loans, literally in the midst of a contentious case about the collections process for Federal student loans at the Court of Federal Claims. It seems that this crazy saga has even reached the White House, and the President feels the need to send a message to the Department of Education: Get your act together.

Second, the pairing of free speech and the financing of education. I’m all for free and open debate on college campuses but I’m not sure why it’s mentioned in this order.

Third, as a parent, a taxpayer, and a former student, I really like the idea of the program and institution-level data about outcomes. I love that there would be an apples-to-apples comparison from one school to the next.