On Monday, the Consumer Financial Protection Bureau (CFPB or Bureau) published its notice and request for comments on a survey regarding debt collection disclosures. Along with the notice, the CFPB published several other documents, including:

• Supporting Statement, Part A
• Supporting Statement, Part B
• Sample Validation Notices
• Survey Testing Plan
• Survey Screening Questions
• Survey Instrument

These documents provide some interesting information. Here are the four things you need to know.

1. Focus: Validation Notice, Consumer Rights Disclosures, and Disclosures for Time-Barred Debts

According to the Bureau’s justification of the survey in Supporting Statement, Part A, it is looking for information on three main items:

• Whether additional information is needed in the validation notice to assist consumers in recognizing their debts;
• Whether additional information should be given to consumers about their rights at the time that the validation notice is given; and
• Whether consumers should receive disclosures regarding time-barred debt in initial and subsequent communications.

The sample validation notices that will be used in the survey can be found here. These sample letters include, for the most part, identical disclosures – the only variable disclosure is the one regarding time-barred nature of the debt. Disclosures such as the mini-Miranda, the validation notice, the notice of consumer rights, and the debt itemization all appear to be uniform.

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2. One Step Closer to Electronic Disclosures

The Survey Instrument, which includes the survey questions, contains a section dedicated to electronic disclosures. As insideARM previously published, the industry is slowly moving toward modern communication channels but there are still several hurdles along the way. The good news is that the Bureau is using this survey to explore consumer preferences in receiving notices electronically. The Bureau also seems to recognize that there is a fair chance these notices will fall into their spam folder, as two questions on the survey specifically relate to how respondents treat spam emails.

3. The Bureau Still Prefers a “Tear Off” at the Bottom of Letters Containing the Validation Notice

When the Bureau issued its Outline of Proposed Rules in July 2016, it included a sample validation notice letter with a tear off section for a consumer fill out with a dispute and return. After two and a half years and after many conversations between the industry and the Bureau about the issues of such a tear off section, it seems nothing has changed.

The tear off portion in the newest sample validation notice provides consumers with the following options:

• Dispute the debt – not my debt.
• Dispute the debt – wrong amount.
• Dispute the debt – other.
• Request name and address of the original creditor.
• Enclose a payment.
• Request information in Spanish.

One situation that is not addressed is where a consumer acknowledges that the debt is owed but cannot pay at this time. This would not fall under a dispute category but it is information that would be helpful to a debt collector. Debt collectors usually have options available for consumer who cannot pay all or part of their debt due to a hardship, but a debt collector cannot avail a consumer of such options if the debt collector does not know the situation.

4. The Survey Will Likely Not Delay the Bureau’s Debt Collection Rules

The Bureau’s Fall 2018 Rulemaking Agenda listed the estimated date of the Notice of Proposed Rulemaking (NPRM) for the debt collection rules as March 2019. Since the disclosure survey comments are due on March 4, there was some speculation about whether or not the rules will be delayed.

Two items in the supporting documentation indicate that there might not be a delay after all. In the Supporting Statement, Part A, the Bureau states as follows:

The Bureau has also previously released examples of possible consumer disclosures as part of the Outline of Proposals Under Consideration for the Small Business Review Panel for Debt Collector and Debt Buyer Rulemaking. The Bureau has received and continues to receive feedback from stakeholders on these examples and related topics, and these disclosures continue to be under consideration and development. Any disclosures that become part of a rulemaking will be released at a later date and will be subject to public notice and comment.

(Emphasis added.)

The same document also states:

The Public will also have an opportunity to comment on the proposed disclosures when the Bureau publishes its notice of Proposed Rulemaking for the rule that this research will support.

This indicates that the NPRM and finalized disclosures are not co-dependent on each other, and that the NPRM’s March timeline will likely not be impacted by this survey.

Senator Ben Hueso of California’s State Senate introduced a bill on Monday that will attempt to put a stop to the practice of spoofing, specifically where the spoofed calls come from an area code local to the consumer. The bill is called the Consumer Call Protection Act of 2019.

The bill’s preamble sets the stage for the current lay of the land and what it proposes to do:

Existing federal law, with certain exceptions, makes it unlawful for any person within the United States, in connection with any telecommunications service or internet protocol enabled voice service, to cause any caller identification service to knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value and authorizes the chief legal officer of a state, or any other state officer authorized by law to bring actions on behalf of the residents of a state, to bring a civil action on behalf of the residents of the state in an appropriate district court of the United States to enforce this prohibition.

This bill would require a telecommunications service provider, on or before July 1, 2020, to implement specified protocols or similar standards to verify and authenticate caller identification for calls carried over an internet protocol network. The bill would authorize the commission and the Attorney General to bring an action pursuant to the above-described federal law and would authorize the commission to work with the Attorney General for the purpose of enforcing that law.

The bill states that consumers have experienced a rise in deceptive robocalls and that action is needed to protect Californians “from imposters using telecommunications to defraud consumers.”

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insideARM Perspective

Yesterday, insideARM published an article about a court decision that found local number outpulsing is not a deceptive practice. The timing of this new California bill is perfect to explain a key difference: local number outpulsing and spoofing of local number are two separate practices and should not be confused.

Local number outpulsing involves making calls from a phone number with a local area code to the call’s recipient. The number used is usually owned or registered to the company using it. If the consumer were to call the number back, it would result in a call to the company.

Local number spoofing is something entirely different. Rather than using a local number owned by or registered to the company making the call, spoofers commandeer a local phone number for a brief period of time in order to place calls that are difficult to trace back to the spoofer. If the consumer calls this number back, they are not going to call the company who place the spoofed call – they are going to dial whoever owns that number.

The difference here is ownership of the number. If the number is registered to the company, then such calls are not deceptive according to some courts. If the number is not registered to the company, then that’s a different story.

The Eastern District of Pennsylvania (E.D. Pa.) recently reviewed a case regarding local number outpulsing, where a company places calls from a phone number in the consumer’s area code even if the company is not located there. In Bermudez v. Diversified Consultants Inc., No. 18-cv-2004 (E.D. Pa. Feb. 1, 2019), the court found that the practice was not deceptive or misleading as alleged by the consumer.

Factual and Procedural Background

Defendant debt collector placed a call to plaintiff’s daughter using three phone numbers from the daughter’s area code in Pennsylvania. Defendant is located in Jacksonville, Florida, and does not have a place of business in Pennsylvania.

Plaintiff filed a Fair Debt Collection Practices Act (FDCPA) lawsuit against defendant, alleging that using a local area code was deceptive and misleading because the local phone number gives consumers a false impression that the call is locally originated in order to entice the consumer to answer. In response, defendant filed a motion to dismiss, which the court granted.

The Court’s Decision

Unlike the plaintiff, the court did not take issue with the practice of local number outpulsing. In determining whether the practice was deceptive or misleading, the court looked directly to section 1692e of the FDCPA. The court stated:

Section 1692e’s list of prohibited conduct generally characterizes three categories of harmful practice, to wit: misleading consumers about the debt collector’s identity, about the character of the debt itself, and about the consequences of a consumer’s decision about the debt.

Noting that the representation about the identity of the debt collector is about who the debt collector is – not merely where the debt collector is calling from – the court found that the practice was not prohibited conduct under 1692e.

Additionally, the court found that the practice is not material in how a debtor addresses debts, which what Congress sought to protect. Therefore, the court found that:

The use of a particular phone number, by a Defendant whose business location is covered by a different area code, is not materially misleading information or prohibited conduct under the FDCPA.

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insideARM Perspective

Recently, insideARM wrote about the ARM industry’s dilemma when dealing with FDCPA litigation. One reason for this dilemma is the constant stream of lawsuits even when the courts have already resolved the issue at hand. Inconsistent court decisions light a fire under this problem. This inconsistency leads to the belief that even if a claim failed in one jurisdiction, it doesn’t mean that it will fail in another — even though it relates to the same provision of the FDCPA. What is the result? Duplicative lawsuits in multiple jurisdictions addressing the same issue.

This is currently highlighted within the Third Circuit on the issue of whether validation notice language that tracks the FDCPA is or is not confusing to consumers regarding dispute procedures. In that situation, the reason for confusion is clear — district courts within the same circuit are coming out with conflicting decisions.

The situation illustrated by the decision outlined in this article shows the other face of this problem: even when courts are ruling consistently, it does not stop duplicative lawsuits on the issue. A footnote in this case references that several other district courts found no FDCPA violation in a similar set of circumstances. Yet, because courts are ruling inconsistently, suits like this continue to get filed because there could be a chance of success in other jurisdictions and the volume and cost of litigation are so high that debt collectors are almost strong-armed into settlements.

The big picture here is this: all of this relates to the same statute. The FDCPA is a federal statute, which means its requirements should be uniform throughout the country. That is not what is happening in reality, and that is a problem.

On Tuesday, the Consumer Financial Protection Bureau (CFPB or Bureau) announced that it reached a settlement with Cash Tyme, a payday retail lender. Per the consent order, Cash Tyme must pay a $100,000 fine, split into two $50,000 payments.

The allegations against Cash Tyme included, among other things, the following:

• Failing to have an adequate process to prevent unauthorized charges to borrowers. Specifically, having “no reliable means of preventing a subsequent ACH debt from the consumer’s account for the full amount of the loan, even though the full amount was no longer due.” This resulted in the collection of at least $21,800 that consumers did not owe.
• Failing to have adequate processes to monitor, identify, correct, and refund overpayments by consumers. A manual process was in place, but it often led to errors.
• Routinely making collection calls to third parties listed as references on the consumers’ applications until the consumer paid his loan, risking third party disclosure.
• Notating requests not to call in the consumers’ files rather than keeping a do-not-call list, which led to errors.
• By using references listed on consumers’ applications, which stated that these references would only be used for verification purposes, to make telemarketing leads.
• Advertising unavailable services on storefronts that were likely to lead a consumer to decide whether or not to visit a Cash Tyme store.
• Failing to adequately display the Annual Percentage Rate on its advertisements.

In addition to paying the fine, Cash Tyme must implement adequate processes related to unauthorized charges, ACH payments, and monitor for overcharges. Cash Tyme must also amend their advertisements to correctly state the Annual Percentage Rate, make its privacy notice clear and conspicuous, and refund all un-refunded customers.

SEATTLE, Wash. — Attunely Inc. announced today that it has raised $3.7 million and is making its machine learning (ML) platform commercially available to over 4,000 third-party collection agencies, debt buyers, and collection law firms in the Accounts Receivable Management (ARM) industry. Attunely uses machine learning to help its customers fine-tune their outreach process by using real-time optimization and account scoring to improve the consumer experience, reduce ineffective outreach, and drive increased recovery rates and operating margins.

“Attunely’s team brings together ARM industry veterans with enterprise-grade machine learning software innovators,” said Scott Ferris, Attunely’s Founder and Chief Executive Officer. “We couldn’t be more excited to be playing the long game by partnering and tailoring our software to the specific set of challenges facing the ARM industry.”

Over the last year, Attunely has partnered with several third-party agencies and debt buyers to design its supervised learning algorithms and real-time account valuation model driven by data from over 100M historical consumer interactions. The company also offers a suite of reporting and analytics tools that empower customers to monitor and continuously optimize performance in real time.

“Machine learning is a game changer for the industry – the new edge in leveraging the data we already have. Attunely has been able to streamline and optimize the priorities of consumer contact, while still complying with strict regulatory issues. We have been able to take our business to new levels of efficiency and revenue opportunity. We at Account Management Services (AMS) intend to change, grow, and thrive, thanks to our friends at Attunely,” said Rick Moss, CEO of AMS.    

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As a result of close collaboration with industry leaders and experienced operations managers, Attunely’s product is designed to integrate seamlessly with a customer’s existing IT infrastructure and workflows. To that end, the company is beginning to engage in cooperative channel partnerships with embedded technology vendors to seamlessly integrate and distribute its machine learning platform and tools.

“We have spent significant time with the Attunely team and continue to be impressed with how they are listening and adapting their software to meet our exacting specifications,” said Mike Frost, Chief Compliance, Sales Officer and General Counsel of CBE Companies. “As we evolve our optimization patterns, we expect to see increased propensity to pay results, reduced compliance infractions, and in the end deliver improved results to our clients.”

Steven Fuernstahl, President of Stoneleigh Recovery Associates, says “Attunely’s machine learning insights have significantly improved our collections operations and allowed us to recover more revenue for our clients through a more personalized consumer engagement.”

The company has also managed to engage an impressive list of long-standing industry experts who have helped to shape the product offering, including the appointment of Steven Wilansky as Attunely’s Chief Legal & Compliance Officer and Jack Lavin, Chairman Emeritus of Arrow Financial Services and Chairman of Javlin Capital, as a Board Director of Attunely Inc.

“Attunely and its clients are well positioned to improve the ecosystem and cycle even more credit back into the U.S. economy each year by mitigating risks associated with extending credit to subprime borrowers,” said Lavin. Attunely is announcing today the commercial availability of its platform at the annual Receivables Management Association (RMA) conference in Las Vegas.

About Attunely

Attunely is a cloud-based, optimization platform for the Accounts Receivable Management industry that uses machine learning to increase efficiency in the collection process, thus improving outcomes for creditors, lowering risk in the credit ecosystem, and expanding access for subprime borrowers.

For more information, visit http://www.attunely.com.

The business of blocking and labeling calls has gotten big. And competitive. And it’s moving very quickly (and sort of slowly too). This business sits at the intersection of privacy, transparency, big data, technology, and the regulatory challenge to stop bad guys who can iterate in a weekend – from their basement. So, where does this all stand?

Let’s review some of the key players.

First Orion

First Orion was one of the first on the scene. According to their website, they’ve been in the game for 10 years. As the parent company of PrivacyStar, they engaged with the Federal Trade Commission (FTC) to provide consumer complaints direct from mobile phones to the FTC’s database. Early on, the user could categorize the complaint based on the type of call. The numbers exploded. In January 2012, 389 complaints about debt collection came from PrivacyStar. By 2015 the number averaged 74,800 per month (yes, you read the numbers right). An early 2013 study by insideARM of the accuracy of complaints revealed that PrivacyStar data was far from definitive. We have not repeated the study, but the data quality has no doubt improved since then.

It was also uncovered a few years ago that PrivacyStar was funneling TCPA leads to plaintiffs’ attorneys, including Sergei Lemberg. First Orion representatives have told insideARM that this practice stopped a long time ago.

First Orion’s stated mission today is: “We provide transparency in communication that empowers people to trust their phones again.” They provide the backbone for call blocking and labeling software used by T-Mobile. They are behind labels such as “scam likely.”

They were also the first to engage the industry of call originators. In response to concerns that a “debt collector” label could possibly lead to inadvertent third party disclosure under the federal Fair Debt Collection Practices Act (FDCPA), they were amenable (see the insideARM Perspective here) to implementing other terms instead which were accurate but not so problematic.

In 2017 First Orion launched calltransparency.com to allow callers to register their numbers with the analytics company, in the hopes of ensuring their calls are not blocked, and correcting the way their calls are labeled. In 2018 they re-launched the portal, and now offer an expanding set of paid services to originators.

In 2018 the company announced its inaugural Scam Call Trends and Projections Report, predicting that – without the adoption of more effective call protection solutions — nearly half of all calls to mobile phones will be fraudulent in 2019. The figure was quoted far and wide. The data they released showed that mobile scam calls increased from 3.7 percent of all calls in 2017 to 29.2 percent in 2018.

As an aside, an early investor in First Orion has just published a book called, “Now What? The Biography of a (Finally) Successful Startup.” Charles Morgan, subject of the book and founder of Acxiom Corporation, says it’s a story of a wildly successful entrepreneur – and the role of data in today’s business world.

Hiya

In October 2017 Hiya announced the closing of $18M in funding for expansion. The company provides call blocking and labeling software to AT&T and also offers a Hiya app directly to consumers.

Hiya has released its own robocall reports. Just last week the company’s State of the Phone Call report said its data shows consumers pick up 52% of all incoming calls. They break this down by what level of identification the call contains, with these average pick up rates:

• 70% of calls that are “saved in contacts” are picked up
• 53% of calls identified as a business are picked up
• 38% of calls that are “not saved to contacts” are picked up
• 24% of calls that are not identified are picked up
• 9% of calls identified as spam are picked up

(What’s also true is that Hiya is now marketing services to businesses that allow them to brand their calls.)

Major media loves these stats. Among others, The Washington Post wrote about the latest Hiya data.

Transaction Network Services (TNS)

The oldest of the three major analytics firms, TNS is the third leg of the stool providing call analytics engines to the major carriers. They provide call blocking and labeling services to Verizon and Sprint. To my knowledge they do not publish a robocall report. They have also begun to offer analytics services to call originators.

Aside from its role in the call blocking/labeling ecosystem, TNS is one of those extremely large and impactful companies many have never heard of. They are the primary provider of managed infrastructure, networking and communications services for many national and global organizations.

They were kind of late to the game in terms of working with industry to understand the unintended consequences of call blocking and labeling, but they’re at the table now. In November 2018 the company launched a website called www.Reportarobocall.com. According to the launch announcement, “The solution gathers feedback from the public about high-risk (scam/fraudulent) and nuisance calls and enables legitimate businesses to dispute the tagging of their phone numbers to help ensure outbound calls are verified, labeled correctly and get through to their customers.” 

Numeracle

Launched in 2017, Numeracle aims to tie it all together. Think of them as providing analytics on the analytics companies. They offer to handle registration with the various analytics providers (so call originators don’t have to establish multiple relationships) and provide visibility into what’s happening with the company’s phone numbers: Which are being blocked? Which are being labeled? By whom? With what label? Numeracle also verifies the call originator’s identity, call compliance infrastructure and use of its phone numbers for the purpose of customer communications to certify the caller’s status as a trusted entity.

They too have a mission based in transparency: To build the framework and technology that provides a foundation of trust in customer communications by enabling transparent flow of information from origination to destination.

Neustar

Many in the Accounts Receivable industry know Neustar because of their TCPA compliance solutions. They are a major company that provides marketing, risk, registry, digital defense, and communications solutions. They are also a major provider of caller ID (CNAM) information to carriers.

Through its Branded Contact Management and Caller Intelligence suites, Neustar offers Branded Call Display and Caller Name Optimization services to call originators, and Robocall Mitigation services to carriers. The company also markets a “Certified ID” service which provides visual indicators to a call recipient that a caller’s information has been authenticated and verified (Note: To my knowledge, this capability does not exist yet. Under that product link, the website says “We’re taking a leading role in developing standards and IP-based solutions. As standards emerge, we validate the authenticity of digital certificates…”)

Last month the company announced it had acquired TRISTID, a provider of caller authentication and fraud prevention systems for contact centers.

insideARM Perspective

I have a few thoughts.

One – The irony of this new ecosystem is that many of its participants say they stand for greater transparency, yet their evolving business strategies and the algorithms they use to label calls have been quite opaque. In part, I see why. First – they wouldn’t want to reveal the formula to the bad guys. Second – this is an incredibly competitive and fast-moving market.

Two – It makes a lot of sense to me that businesses like these would offer callers the ability to announce who they are and why they are calling. It’s what consumers want to know. It turns out there are myriad reasons why it will take a while for widespread adoption of this “enhanced” information, including variability in (mostly mobile) hardware, software, data plans, and no doubt other issues. I suspect, though, that this will all be worked out in the coming few years and eventually an unidentified call will be the exception rather than the norm. This – combined with the expected implementation of the STIR/SHAKEN protocol for verifying the true call originator – should help consumers to trust who is ringing their phone and to have the information they need to decide whether to answer.

Three – My personal bailiwick has been to convince regulators that the loss of trust in the phone ecosystem has created a crisis of conflict between consumer demand for both privacy and transparency, and the way this plays out in debt collection. The FDCPA prohibits collectors from communicating with a third party about someone’s debt. The Act defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium,” but it does not define this key term “information.”

As a result, courts established an extremely broad definition of “information” which evolved to include things like internal collection agency account numbers appearing through the window of a collection letter envelope and even the legal name of the debt collector in some circumstances. Of course, “information” likely also would include “enhanced caller ID” which would reveal the true name of who is calling, and possibly also why they are calling (even though this information would be truly useful to the called party).

Due to the legal landscape caused by FDCPA litigation, debt collectors are forced to appear unforthcoming when initiating communication with consumers. If you’re still with me, you can read more about this and my suggested solutions.

Finally — the thing I mentioned above about First Orion funneling TCPA leads to consumer attorneys? Well, it seems it is indeed still happening (or at least it was in 2016). This Forbes article from earlier this week details the case of Donell Tillman v. Ally Financial. Tillman used an app called Block-It, which is sold by First Orion. He received a call from Ally which was meant for the previous owner of the phone. Tillman submitted a complaint. He received a return text, “I will be sending your case to Billy Howard in Florida. He is the best… you can google him. This should be a very simple case for him to settle quickly.”

There seems to be a flurry of petitions for the U.S. Supreme Court (Supreme Court) to hear cases related to debt collection, but the most recent one takes the cake for having the likelihood of most impact to debt collectors. On December 17, 2018, a consumer — who just so happens to be a practicing attorney — filed a request for the Supreme Court to review Huebner v. Midland Credit Management, on appeal from a Second Circuit decision. The case was docketed at the Supreme Court as case no. 18-991 on January 30, 2019, and a response to the petition is due March 1, 2019.

The petition seeks input from the Supreme Court on three questions:

1. Whether a consumer’s dispute needs to be in writing in order for it to trigger the Fair Debt Collection Practices Act (FDCPA);
2. Whether a debt collector can inquire about the reason for the consumer’s dispute; and
3. Whether the least sophisticated consumer standard is a question of law or a question of fact.

If the Supreme Court grants the petition and hears the case, its decision will be binding nation-wide.

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Written v. Oral Dispute

As previously reported on insideARM, there is a jurisdictional split about whether all subsections of 1692g require a dispute to be made in writing. According to the Third Circuit in Graziano v. Harrison, all disputes need to be in writing in order to trigger the FDCPA — an issue that prompted an open letter to the Consumer Financial Protection Bureau. However, according to the petition, the majority of circuits have rejected Graziano. Specifically, the First, Second, Fourth, Sixth and Ninth Circuits all found that an oral dispute can trigger FDCPA protection. The First, Fifth, and Seventh Circuits have gone even further and found that there is a “know or should know” standard for disputes — if the debt collector has any reason to know that the account is in dispute, regardless of whether the consumer communicated the dispute to the debt collector, then the FDCPA is triggered.

The petition notes that the Supreme Court recognized the conflict when it reviewed Jerman v. Carlisle back in 2010, but the court did not rule on the issue, which persists to this day.

Reason for Dispute

Some debt collectors ask “probing questions” in order to better respond to a consumer’s dispute. The petition argues that debt collectors usually receive little more than a spreadsheet of basic information about accounts (names of consumers, addresses, amounts owed, etc.). If a debt collector, who is the more knowledgeable party, asks for a reason for the dispute, the debt collector could use it to harass the consumer and convince the consumer that the debt is owed.

Per the petition, the underlying Second Circuit decision created yet another jurisdictional split. The First, Second (pre-Huebner), Fifth, and Seventh Circuits preclude a debt collector from requiring the consumer to disclose why he is disputing. However, in the underlying Second Circuit case, the court found the opposite — some questions to determine the reason for dispute are okay if they are not harassing or abusive.

Question of Law or Fact

The final jurisdictional split mentioned in the petition relates to whether the evaluation of the least sophisticated (or unsophisticated) consumer standard is a question of fact or a question of law. According to the Sixth, Seventh, and Eleventh Circuits and the States of New York, Maryland, and California, it is a question of fact. On the other hand, the Second, Third, Fourth, Fifth, Ninth, and Tenth Circuits and the State of Oklahoma treat it as a question of law.

insideARM Perspective

If the Supreme Court decides to review this case, it would have a significant impact on the industry for two different reasons.

First, it would provide clarity to the dispute process under the FDCPA — a process complicated by the Third Circuit and a flurry of court decisions in the Eastern District of Pennsylvania. The Supreme Court’s decision would alleviate the current confusion about whether or not a dispute under 1692g, specifically under subsection (a)(3), needs to be in writing. It would also help set the path for what a debt collector can and cannot do once a dispute is received.

Second, it could have an impact on FDCPA litigation defense costs. Whether or not the least sophisticated consumer evaluation is a question of law or fact will ultimately determine at what stage of litigation certain FDCPA cases can be disposed of. If it is a question of fact, then whether or not a communication is deceptive or misleading needs to be decided at trial, usually by a jury. If it is a question of law, then the judge can decide it as early as at the Motion to Dismiss stage. The earlier the stage of litigation, the less it costs for a debt collector to defend against FDCPA litigation.

Now we wait to see if the court accepts the case.

ROCHESTER, N.Y. — Continental Service Group, Inc., d/b/a ConServe, together with its team of dedicated employees proudly supported the volunteer efforts of local first-responders in January. Through the company’s Jeans For Charity program, in which ConServe employees can elect to participate in monthly charitable donations in exchange for the option of wearing jeans to work, employees are provided with the opportunity to “give back” to their local communities by donating to a diverse group of organizations throughout the year. Additionally, the funds raised by the employees’ generosity is supplemented by the organization’s “Matching Gift Program.” This ongoing initiative symbolizes ConServe’s commitment to its corporate mission of helping to improve the human condition.

Jon LeRoy, President of Perinton Ambulance states, “We’ve learned that part of ConServe’s mission is ‘helping to improve the human condition’.” In 2018, Perinton Ambulance utilized the Jeans for Charity donation to purchase four new wheelchairs for use by community members as needed. This year’s funds will also be used to purchase additional wheelchairs and other needed durable medical equipment, such as knee scooters. He continues, “we are truly thankful for companies such as ConServe and their philanthropy for the community. Their support of our organization touches the lives of innumerable residents in need each year,” said LeRoy.

“ConServe is committed to giving back to our local communities” said George Huyler, Vice President of Human Resources. Giving back is an integral part of ConServe’s corporate mission statement. “ConServe is proud to support the first-responders who have committed to being there for our families, our neighbors, and our communities whenever we need them.

ConServe is a top-performing 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 the Perinton Ambulance

The Perinton Ambulance is known as a “combination service,” utilizing volunteers and hourly personnel to maintain the staffing necessary to meet the service needs of the community. Every day, they have two full crews on duty around the clock and staff an additional ambulance during high volume hours. The remaining vehicles are staffed as the needs of the community dictate.

Visit them online: www.perintonambulance.org

About the Henrietta Volunteer Ambulance

The Henrietta Volunteer Ambulance has proudly served the residents and commuters within the Town of Henrietta and surrounding communities. The organization was formed in 1962 by a group of residents who decided that the ambulance response time from the City of Rochester was too great. Currently they are dispatched by the Monroe County 911 Center and operate a fleet of 10 vehicles and have approximately 60 personnel to handle 5,900+ annual calls for service. They are staffed 24 hours a day, 7 days a week. In addition to volunteers, they have a career staff comprised of full-time, part-time and per diem EMTs and paramedics.

Visit them online: www.henriettaambulance.org

About the Lancaster Volunteer Ambulance Corporation

The Lancaster Volunteer Ambulance Corporation (LVAC) has been responding to calls throughout all of Lancaster and DePew New York for over 60 years and have expanded their coverage area to the Town and Village of Alden. LVAC has a combination of both paid and volunteer staff of approximately 75 members. They are staffed 24 hours a day, 7 days a week. Their home base is centrally located within the call districts, located near Walden and Central Avenues.

Visit them online: www.lancasterambulance.org

Back in September when the Ninth Circuit issued its Marks v. Crunch San Diego LLC, insideARM mentioned in its iA Perspective that if the Federal Communications Commission (FCC) did not act quickly to provide guidance on the Telephone Consumer Protection Act (TCPA) — specifically on the definition of an automatic telephone dialing system (ATDS) — then the U.S. Supreme Court might get the first stab. Well, all signs point toward Supreme Court review.

Yesterday, Crunch filed a petition for writ of certiorari with the Supreme Court, which is a request for the court to hear the case. The decision for the Supreme Court to review cases is not a right, but rather is at the Supreme Court’s discretion.

Editor’s Note: Here’s a fun piece of trivia. While we are all accustomed to calling this case Marks v. Crunch, the name of the case before the Supreme Court is now flipped to Crunch v. Marks due to the Supreme Court’s naming mechanism and Crunch being the petitioner.

The question presented in the petition is:

Whether the Ninth Circuit erred in expanding the TCPA’s definition of “automatic telephone dialing system” — in acknowledged conflict with the Third Circuit and in stark tension with the D.C. Circuit — to encompass any device with capacity merely to dial stored telephone numbers.

In Marks, the Ninth Circuit found that a device with the capacity to store telephone numbers falls into the TCPA’s definition of ATDS, regardless of its ability to randomly and sequentially generate and dial numbers. The Third Circuit decision referenced in the question presented is Dominguez v. Yahoo, Inc., where the court ruled that a device needs to have the present ability to randomly or sequentially generate numbers and dial them in order to qualify as an ATDS. Since these definitions are in direct conflict, a jurisdictional split exists.

The Ninth Circuit denied Crunch’s petition for rehearing en banc, which would have had all of the Ninth Circuit judges — rather than just a three-judge panel — review the case.

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insideARM Perspective

Well, folks, we might be headed toward Supreme Court review. Many factors favor the Supreme Court’s acceptance of the case: the circuit split, the widespread impact of the issue, and the FCC not yet providing guidance.

We have long been waiting for the FCC to provide clarity on the TCPA. On the same day that the Marks decision came out (although it is uncertain which came first), the FCC’s Chairman Ajit Pai sent response letters to several congressional representatives agreeing that TCPA clarity is needed and that this was on the FCC’s radar. After Marks was released, the FCC sought comments on how to interpret the definition of an ATDS in light of the circuit split. The comments were submitted in late October and not much has been heard since. Earlier in January, the FCC closed up shop for many of its non-essential functions during the federal government shutdown, which likely causing further delay.

Whether or not the FCC is waiting to see if the Supreme Court would take up the issue, we don’t know. We also don’t know whether the Supreme Court would prefer to wait for FCC guidance prior to making a decision, thus potentially denied the petition. Sounds like we have to wait and see for a little bit longer.

STOCKTON, Calif. — C B Merchant Services (CBMS), a California based collection agency established in 1917,  is pleased to announce grants totaling $108,000 were made to 38 nonprofit organizations in 2018.

CEO/President Linda Guinn is shown presenting funds to the Loel Senior Center. The Loel Senior Center will use the funds to expand their meals program.  

In addition, CBMS annually supports a $2000 competitive essay scholarship opportunity, administered by the California Association of Collectors, Education Scholarship Foundation (CACESF.ORG).  This scholarship opportunity is open to all graduating high school seniors in California. Funds awarded may be used to attend any accredited public or private college, university or trade school.     

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