This article originally appeared on the Consumer Financial Services Legal Update. It is republished with permission from the author.

One of the most annoying inhabitants of TCPA land is the Opt-Out Evader. This fellow or lady tries to set up TCPA lawsuits by texting phrases s/he knows will not be recognized by text service providers. Rather than simply texting “STOP,” the Opt-Out Evader texts, “It would be great if you would no longer text me. Thanks.” And instead of QUIT, s/he might say, “These text messages are really quite excessive so please cut it out.”  It is all a scam, of course. The Opt-Out Evader knows that texts are bound to continue—few, if any, text message senders have the time/money/wherewithal to manually monitor each and every response in real time. Instead, computer programs are used to track and obey Opt-Out requests and those programs recognize words like “STOP” and “QUIT” but not “I ever so cordially request the tranquility attendant an untexted phone.”

Judge Brian Martinontti of the District of New Jersey saw this tactic a mile away and dealt a steely hand of rough justice to an Opt-Out Evader this week. In Viggiano v. Kohl’s Dep’t Stores, Inc., Civ. Action No. 17-0243-BRM-TJB, 2017 U.S. Dist. LEXIS 193999 (D. N.J.  Nov. 27, 2017), Kohl’s moved to dismiss a TCPA case where it was abundantly clear that the Plaintiff was nothing more than a sassy Opt-Out Evader. There was one little problem though—none of the facts needed to prove the opt-out evasion were pleaded on the face of the complaint. Usually, this means nothing can be done at the pleadings stage and the Defendant must await summary judgment to clear the air.

But Judge Martinontti was not in the mood for delay. He first tolerated Kohl’s submission of its Terms and Conditions, finding that they were “integral” to the allegations of the complaint. That’s a stretch, but not without precedent. Next, however, the Court accepted and considered Kohl’s declaration to the effect that the Opt-Out Evader received a message in response to each of her texts stating that Kohl’s did not recognize her request. That’s just baffling. I’ve read the Federal Rules a few times and I’m pretty sure extrinsic evidence cannot be considered on a Rule 12(b)(6) motion—unless the Court uses its discretion to convert the motion to a Rule 56, which it didn’t do.

No matter. With the full record (somehow) before it, the Court addressed the merits.  First, the Court found that Kohl’s Terms and Conditions provided a “reasonable means” of opting out to consumers: texting “STOP,” “QUIT,” and a few other easy-to-remember phrases back to Kohl’s in response to an unwanted message. Second, the Court found that Plaintiff’s failure to use the ordained method meant that Plaintiff lacked a “reasonable expectation that. . . she could effectively communicate . . . her request for revocation to [Defendant]” in the manner she chose. When Plaintiff protested that she still gets to choose the method unless her method is too burdensome the Court shut it down. Relying on Epps v. Earth Fare, Inc., No. 16-8221, 2017 U.S. Dist. LEXIS 63439, 2017 WL 1424637, at *6 (C.D. Cal. Feb. 27, 2017) the Court held that Kohl’s gets to dictate the revocation method so long as it is not “difficult or impossible to effectuate revocations.”

Viggiano is a great case to use against Opt-Out Evaders, but it obviously has broader uses as well. I have been saying for over a year now that contract-based revocation terms are enforceable even after the Omnibus. (The FCC’s Respondent’s brief in the ACA, Int’l appeal says so and so did the FCC’s Counsel at Oral Argument—I was there.)  But there have been precious few decisions on the topic. While Reyes opens the door a crack, Viggiano provides solid support for the proposition that businesses may dictate the manner in which consumers revoke their consent—so long as it isn’t too painful on the consumer.

Ontario Systems — longtime software provider to the accounts receivable, healthcare revenue cycle, and government markets — announced today that Jason Harrington has been named the company’s 4^th president in its 37-year history. Jason has been with the company for 22 years, and now takes on responsibility for all sales, marketing and operational activities. Co-founder Ron Fauquher, the most recent president title-holder, plans to remain an active CEO.

insideARM spoke with Jason last night. We asked about his vision for the company, and how he feels about the role. He said,

“We have grown quite a bit in recent years. Now, we are in the process of looking at how we can best accommodate that growth by restructuring in a way that serves the unique needs of each of our markets. Regulatory change and innovation come to different industries at different speeds. I’d like to see us be able to react nimbly to those realities.

As part of our strategy, I am a big believer in the cloud. And, a large portion of our customers still have premise-based software. We want to accommodate this with a hybrid approach that doesn’t require customers to make a complete change, but gives them the competitive ability to take advantage of better analytics and decision making input.

Whether or not government regulations catch up with technology, we need to help our clients be profitably compliant, taking advantage of automation wherever possible.

As for my role, I am truly humbled. I came to Ontario Systems when I was 22. I grew up as a Muncie [Indiana] kid, in the same community where these guys [Ron Fauquher and co-founder Wil Davis] were leaders. It’s important to me that the company continues to prosper. It feels like someone just handed me their baby. I see that as a big responsibility, and an honor.”

Meanwhile, I asked about what a Harrington presidency might mean for customers. I learned that, while Fauquher grew up as an engineer, Jason grew up in the call center. Six months after joining the company, they asked for someone to go on the road and get to know the customers. “I was 22; I raised my hand,” Harrington said. “All these years later, if there is someone who has been in more call centers than me, I’d like to shake their hand!” He added, “The relationships I’ve built over the last two decades will help me to focus the company in a way that supports the growth of our customers, as well as the growth of Ontario Systems.”

Jason is also looking forward to his new relationship with the core team that has been running the company for years. “I’m the leader now, but until 10 minutes ago, they were my peers. I intend to take a pretty collaborative approach.”

From the company’s press release,

 “Jason is trusted by our customers, his team, our communities, and the company as a whole,” says Casey Stanley, Vice President of Product Management & Marketing. “He has been a role model for our associates, and a visionary for the industries we serve. Jason’s beliefs and values have been deeply influenced by our co-founders, Wil Davis and Ron Fauquher, and we are certainly excited to see how his personal leadership will influence our culture and work.”

Ontario Systems’ operations and marketing leaders – Steve Scibetta, David Pilkington, Mike Meyer, Jay Moorman, and Casey Stanley – will report to Harrington as President, while he continues to report to Ron Fauquher as CEO.

Ontario Systems, LLC is a leading provider of revenue recovery software and solutions to the revenue cycle management (RCM), accounts receivable management (ARM) and government markets. Established in 1980 and headquartered in Muncie, Ind., Ontario Systems also has a location in Vancouver, Wash., and employees in 27 states. Ontario Systems offers a full portfolio of software, services and business process expertise, including product brands such as Artiva RM™, Artiva HCx™, Contact Savvy®, and RevQ®. Ontario Systems customers include five of the 15 largest hospital networks who actively manage over $40 billion in receivables collectively, as well as eight of the 10 largest ARM companies and more than one hundred state and municipal governments in the U.S.

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ROCKVILLE, Md. — The Consumer Relations Consortium (CRC) is pleased to share a robust set of brief stories that illustrate positive outcomes that result from communication between consumers and legitimate debt collectors.

There is no shortage of negative anecdotes about consumers who have been intimidated or harmed in some way by rogue collectors. Unfortunately, due to the proliferation of scams and others who see debt collection as an easy target, it seems this may be unavoidable.

However, what isn’t published is that in the majority of actual interactions between consumers and debt collectors, accounts get resolved, and stress is reduced. Here are just three examples:

I finally answered the phone and I was glad I did. Through the course of the conversation with Dave, we recognized that I was not the Mark Smith they were looking for. They took me out of their system and the calls stopped.

I wanted to pay off this account but I just didn’t see how I could do it. Charlie helped me to find options other than filing for bankruptcy, or getting a title loan. If I lost my car, I couldn’t get to work, which would make things even worse.

I was paralyzed. I was getting so many calls and I just didn’t know what to do. The conversation I had with Debbie was so helpful. She really listened to me and helped me start to move forward. Now, instead of burying my head in the sand, I feel like I’ve got some control.

Click here to read many more stories of how people have been able to directly address past due accounts, including reducing monthly payments, changing payment dates, identifying fraud, and more.

While it is certainly very important for consumers to know their rights as they relate to debt collection, and there is no disputing that every consumer should be treated with respect, what is also true is that avoiding a collectors’ calls or letters does not make the situation go away. Avoidance can lead to negative credit reporting consequences, law suits, and more stress.

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Legitimate debt collection firms invest heavily in training and compliance with the law. Contrary to what is typically reported, most collectors do not buy debts for pennies on the dollar. They are hired by the companies with which consumers have a relationship: hospitals, doctors, utilities, banks, credit card companies, wireless phone companies, etc. Even though the collector may not be chosen by the consumer, they absolutely have an incentive to provide her with a positive customer experience – otherwise they will be fired by their client, and/or the client will lose a customer for life. Neither organization wants this.

About the Consumer Relations Consortium

Founded in 2013, the Consumer Relations Consortium (CRC) is a membership group for larger accounts receivable management firms, creditors, and technology providers. The group is dedicated to engaging in high quality dialogue with regulators, consumer groups and others in an effort to produce common sense solutions that benefit consumers, creditors and servicers. Read more at www.crconsortium.org

This article originally appeared on the Consumer Financial Services Legal Update.  It is republished with permission from the author (Eric Troutman).

When a Defendant submits 89 call recordings demonstrating that the customer never once asked for calls to stop or suggested that the calls were unwanted, you’d think that would be enough to earn a summary judgment. Not so, says Judge Theodore D. Chuang of the United States District Court for the District of Maryland.

In Ginwright v. Exeter Fin. Corp., Civil Action No. TDC-16-0565, 2017 U.S. Dist. LEXIS 194739 ( D. Md. Nov. 28, 2017) the Plaintiff sued for TCPA violations contending that he had revoked his consent to be called by repeatedly responding “no” when asked orally to consent by the Defendant’s agents, and also by asking not to be called on numerous occasions. The Defendant moved for summary judgment, which was ultimately denied despite very potent evidence that Plaintiff’s claims of revocation were entirely concocted.

In approaching the motion, the Court first found that the Plaintiff had provided initial consent by providing his number on the credit application for the automobile loan about which the calls were placed. The Court was unmoved by evidence that the Plaintiff had been repeatedly asked by the Defendant’s agent to confirm that consent in ensuing conversations and declined each time. Such oral consent was unnecessary since the Plaintiff had already supplied the needed consent when he first applied for the loan.

Turning to whether the consent was revocable, the Defendant urged the Court to follow Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017) and deem the Plaintiff’s contractual consent irrevocable. The Court declined to do so, concluding that Reyes conflicts with FCC rulings on the subject (but it doesn’t). After concluding that consent can be revoked, the Court determined that a triable issue exists as to whether or not the consent was revoked. This is true although the Defendant submitted 89 recordings, none of which contained a whisper from the Plaintiff that calls should stop. Still, the Court found that not all recordings were submitted and the absence of some recordings coupled with Plaintiff’s word that he had requested calls to stop was sufficient to raise a triable issue.

The Defendant probably isn’t too heartbroken by the order, however, as the Court went on to deny class certification—yet another in a string of cases holding that individual issues predominate over common ones in these TCPA debt collection class actions. Note to the Plaintiff’s bar: stop it already. The Courts are on to you.

SAN FRANCISCO, Calif. – LiveVox Inc., a leading provider of cloud channel of choice communications solutions, announced an upcoming webinar highlighting 2017 TCPA takeaways and how they can be applied to risk mitigation approaches in 2018. The event will feature LiveVox General Counsel Mark Mallah, and Joseph Bowser, Founder and Partner Innovista Law.  The webinar takes place on Wednesday, December 13^th at 11am PT/ 2pm ET. To register, click here. 

As the second-most-common type of litigation filed in federal court, TCPA concerns hold their place as a key compliance and risk-management priority as 2018 approaches. Recent studies such as the U.S. Chamber Institute for Legal Reform’s “TCPA Litigation Sprawl” highlight the ever-expanding number, scope, and industry targets of TCPA lawsuits since the FCC’s July 2015 Declaratory Ruling and Order. And rather than reining in those rules, the new-look FCC under President Trump has focused on market-based responses to unwanted calls and texts. But those responses are too often either not ready or not working.

What lessons can we glean from this year’s TCPA developments from courts and regulators, and how can they be applied in 2018 to help with this mounting challenge of unlimited statutory damages in a world where perfect compliance is difficult, if not impossible, to achieve?

Join industry attorneys as they reflect on TCPA takeaways from 2017 and discuss compliance strategy for the coming year. Attendees from the event will gain insight on: 

• Key TCPA court rulings in 2017; shifts in consent, technology, and more

• Political climate and its impact on regulatory trends

• Best practices from 2017 and how to apply them moving forward 

About the event:

• Event: TCPA Takeaways from 2017

• Date/ Time: Wednesday, December 13^th at 11am PT/ 2pm ET

• Speakers:

• Joseph Bowser,
  Founder and Partner, Innovista Law PLLC
  TCPA Defense Force
• Mark Mallah
  General Counsel
  LiveVox, Inc.
• Dusty Whitesell (Moderator)
  Chief Evangelist
  LiveVox, Inc.

• Register: Click here

About LiveVox, Inc.

LiveVox is a leading provider of enterprise cloud contact center solutions, managing more than 9+ billion interactions a year across a multichannel environment. With over 15 years of pure cloud expertise, we empower contact center leaders to drive effective engagement strategies on the consumer’s channel of choice. Our leading-edge risk mitigation and security capabilities help clients quickly adapt to a changing business environment. With new features released quarterly, LiveVox remains at the forefront of cloud contact center innovation. Supported by over 450 employees and rapidly growing, we are headquartered in San Francisco with offices in Atlanta, Bangalore, and Colombia. To learn more, visit LiveVox.com or email us at Info@LiveVox.com 

About Innovista Law & Joe Bowser

The TCPA Defense Force is a division of Innovista Law PLLC, with offices in Washington, DC and Richmond, Virginia.  Joe Bowser co-founded Innovista Law and the TCPA Defense Force.  Over the years, many creative companies have become bogged down by fear of the TCPA. Conscientious companies try to follow the rules, but, despite their best efforts, still become a target of TCPA class actions. The TCPA Defense Force pulls together experienced professionals who focus on the TCPA, providing comprehensive services to solve a broad array of TCPA problems. The TCPA Defense Force counsels clients regarding TCPA compliance, provides robust TCPA training for all levels of your organization, and, when necessary, efficiently represents companies in defending TCPA claims in court. 

Joe Bowser has spent the majority of his career litigating complex telecommunication, privacy, and consumer protection-related matters.  Before co-founding Innovista Law and the TCPA Defense Force, he was a partner at a large Washington DC-based law firm.  He has handled lawsuits from coast to coast, in state and federal court on an individual and class basis, and also advocated before state and federal regulators.  His TCPA experience includes counseling and defending clients from a wide range of industries, such as media, technology, fashion, higher education, insurance, and banking, as well as the platform providers who enable their marketing campaigns.

According to a Wall Street Journal report on Friday, interim Consumer Financial Protection Bureau (CFPB) director Mick Mulvaney has recruited Brian Johnson, an attorney and aide to House Financial Services Committee Chairman Jeb Hensarling (R-TX), to serve as a senior adviser.

Rep. Hensarling is reportedly one of those on President Trump’s short list to be nominated for the permanent CFPB director position.

The WSJ article reports that Johnson will have the authority to act on behalf of Mulvaney during the transition to a permanent director. This is significant, as Mulvaney has a full time job as director of the Office of Management & Budget. He has said that he will work three days at each job for the foreseeable future, but with both positions currently carrying a heavy demand it is clear that this will be difficult to maintain in practice and give each job its due.

According to Politico, the other candidates on Trump’s short list to replace Richard Cordray include Todd Zywicki, law professor at George Mason University; and Keith Norieka, former acting Comptroller of the Currency.

Other names previously discussed have included former Rep. Randy Neugebauer (R-Texas); Mark Calabria, currently Mike Pence’s Chief Economist and former Director of Financial Regulation Studies at the Cato Institute; and former Fannie Mae counsel Brian Brooks.

In The Hill yesterday, opinion contributor Matt Mackowiak suggested that the President should nominate former Congressman Scott Garrett (R-N.J.) to the post. He is the current choice to lead the Export-Import Bank, but evidently is expected to have difficulty being confirmed for that position. Mackowiak suggests that the CFPB post would be an easier confirmation lift. Mr. Mackowiak is president of Potomac Strategy Group, and a Republican Consultant, serving in the Bush administration and election campaign.

An administration official told Politico that a nominee could be chosen in the next couple of weeks, with an announcement as soon as early January.

Meanwhile, according to a report by Reuters, Leandra English — former CFPB director Cordray’s chief of staff and pick to be the Bureau’s interim head — is still attempting to direct activities. Reuters referred to emails sent to staff as recently as last Thursday night, urging colleagues to ensure that pending enforcement actions are still on track. In spite of last Tuesday’s decision by judge Timothy Berry of the U.S. District Court of the District of Columbia that Mick Mulvaney is the rightful interim director, it seems not everyone accepts this outcome.

insideARM Perspective

It is unclear whether Johnson’s temporary job has anything to do with who Trump will pick for the job, but no doubt Rep. Hensarling will be interested to learn what has been going on behind the scenes at the CFPB; he has said many times that he believes Cordray was less than forthcoming with his committee.

Finally, just in case you were keeping track, it seems interim director Mulvaney is not as prolific on Twitter as his boss. Last week I linked to his brand new CFPB Twitter page, which contained just one tweet. Today, although his followers have about doubled, from 1703 to 3,481… there’s still just the one tweet.

PHOENIX, Ariz. – Empereon-Constar, a leading provider of end-to-end customer engagement and customer management solutions, today announced a major expansion of the company’s nearshore contact center in Tijuana, Baja, Mexico. The 84,000-square feet center provides ample opportunity for buildout upon client request, positioning both Empereon International and Constar International for the future growth of nearshore bicultural and bilingual services. 

“Over the past several years, Empereon-Constar has experienced tremendous growth,” said Travis Bowley, CEO of Empereon-Constar. “This expansion complements our existing capabilities and supports client requests for a convenient, culturally compatible nearshore option.” 

Located 15 minutes from the San Diego International airport in a secure industrial park, the contemporary facility has a 1,000-seat capacity staffed by a cost effective, experienced labor pool of fully bilingual, bi-cultural and highly skilled agents. The facility features a robust IT infrastructure (fiber optic bandwidth with direct connection into San Diego) and is SSAE 18 quarterly audit approved, ISO/IEC 20000 certified, and PCI compliant. 

“Empereon-Constar is positioning itself for future success,” said Yvonne Torrijos, Chief Marketing Officer of Empereon-Marketing. “We look forward to better serving our clients with the increased capabilities the expansion of our Baja facility brings.” 

About Empereon-Constar

Empereon-Constar is a leading business process outsourcing company providing end-to-end customer engagement and customer management solutions for New Sales Account Generation, Customer Care, Risk and Fraud Operations, Collections Operations, QA Agent Call Monitoring, Back Office Administration Support, and Tech Support across the entire customer account lifecycle. Our customized solutions, real-time analytics, and global footprint help our clients achieve their business goals.

Empereon-Constar’s full range of consumer and commercial services includes: lead generation, inbound / outbound sales, account origination, customer care, customer service, technical support, first party collections, recovery collections, credit bureau dispute management, fraud risk management, anti-money laundering, loan servicing and loan processing. Our world-class services and unique global strategy allows us to meet the needs of our client partners across multichannel (email, chat, phone) communication platforms, provide exceptional customer experiences, and consistently deliver world-class performance results, while maintaining the highest level of data security and compliance. For more information, please visit us online at www.empereon-constar.com or www.linkedin.com/company/22345663. 

Empereon-Constar portfolio of companies: Empereon Marketing, LLC, Constar Financial Services, LLC, Empereon International, Constar International, and HQC International.

This article previously appeared on Ontario System’s blog and is republished here with permission. 

One case we have followed since July of 2016 is the District of Massachusetts, U.S. District Court case of Breda v. Cellco Partnership D/B/A Verizon Civil Action No. 16-11512-DJC. In this case, the defendant cell company had mistakenly associated plaintiff’s cellular phone number with a past due account. When calling to collect on the past-due account, the cellular phone company repeatedly placed calls to plaintiff’s cellular phone number using an autodialer and left prerecorded messages in error.  At this point, I would imagine you have assumed the issue in this case is whether the calling party had the consumer’s consent to call. But alas, this is not the issue.

Unbeknown to the defendant, plaintiff had ported her cellular phone service and phone number from the defendant’s wireless service to a company that provides a wireline telephone service to customers using Voice over Internet Protocol (“VoIP”) technology. The issue in this case is whether the calls and prerecorded messages were made to a VoIP wireline service which is exempt from the TCPA.

Plaintiff sued defendant under the TCPA for contacting her on her VoIP service using an autodialer and leaving prerecorded messages without her consent in violation of 47 U.S.C. § 227(b)(1)(A)(iii). This section of the TCPA prohibits calls made to “any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.”

The question as to whether the TCPA extends to calls placed to a consumer’s VoIP service has created tremendous conflict of late. Courts are split as to whether calls placed to a VoIP service falls within the limits of Section 47 U.S.C. § 227(b)(1)(A)(iii). This case is one of the first to hold in favor of the defendant.

The Court granted the defendant’s motion for summary judgment for four reasons:

• Plaintiff’s phone number is not a per charge service or “assigned” to a service for which she was charged for the defendant’s calls because she paid a flat monthly fee for unlimited calls.
• VoIP telephone service is not a per se cellular telephone service. Rather it is a wireline service not protected by Section 227(b)(1)(A)(iii). VoIP technology allows a person to make voice calls using a broadband internet connection instead of a regular (or analog) telephone line.
• A cellular number ported to a VoIP service is not a cellular telephone service subject to the TCPA.
• There was no evidence that the defendant was aware, or that the plaintiff communicated in any capacity, that her VoIP telephone service was connected to a cell phone.

This case is refreshing but not definitive. Other courts may lean more heavily on the calling party to scrub for VoIP services before they place calls to consumers using their wireless numbers. Other courts may not place any duty on the plaintiff to notify the calling party he or she had ported her wireless phone to a wireline service. Other courts may mistakenly confuse the prohibition to extend to wireline as well as wireless services. I would encourage readers and their defense attorneys to be mindful of these issues and collaborate with experienced TCPA defense attorneys such as John Bedard, David Kaminski, or others on defense strategies.

See also this post by Rozanne Andersen for a general discussion of VoIP and whether calls to such phones are subject to the TCPA.

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Disclaimer: Ontario Systems is a technology company and provides this blog article solely for general informational and marketing purposes. You should not rely on the content of this material for any other purpose or as specific guidance for your company. Ontario Systems’ advice, services, tools and products described herein do not guarantee compliance with any law or industry standard. You are ultimately responsible for your own company’s actions and compliance efforts. Because everyone’s situation is different, you must consult your own attorneys, accountants, and/or other advisors to obtain specific advice on your company’s compliance, legal, tax, regulatory and/or other business needs. Despite Ontario Systems’ efforts to provide current and up-to-date information, you need to recognize that the information contained herein may become outdated quickly and may contain errors and/or other inaccuracies.

© 2017 Ontario Systems, LLC. All rights reserved. Information contained in this document is subject to change. Reproduction of this publication is not permitted without the express permission of Ontario Systems, LLC.

This article previously appeared on Ontario System’s blog and is republished here with permission.

Sadly, most people in the ARM industry –  including defense attorneys and judges – have little idea how to determine whether a Voice over internet Protocol (VoIP) call is subject to the TCPA.  How do you go about your analysis? First, let’s make sure you understand the definition of a VoIP call, know a bit about statutory construction, and recognize where you’re at risk.

You can download this document for additional clarification.  

What is a VoIP call anyway? How is it useful?

According to Webopedia, Voice over internet Protocol is a category of hardware and software that enables people to use the internet as the transmission medium for telephone calls by sending voice data in packets using IP rather than by traditional circuit transmissions of the PSTN. VoIP can turn a standard internet connection into a means of placing and receiving phone calls on free software. The practical upshot here is that by using some of the free VoIP software available to make internet phone calls, you’re bypassing the phone company (and its charges) entirely. Many businesses and consumers use VoIP technology to place and receive calls.

What does the TCPA say about VoIP calls?

Nothing.

There is no specific reference to the term VoIP or calls placed using voice over internet protocol in the TCPA’s text or its regulations.  However, within the context of restrictions placed on the use of automated telephone equipment and prerecorded messages to place calls to cellular phones, the TCPA seemingly grabs VoIP calls into the mix. In 47 U.S. Code § 227 (b)(1) the TCPA provides,

It shall be unlawful for any person within the United States or any person outside the United States if the recipient is within the United States—

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice— …

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States…

This section of the TCPA has been broadly interpreted to apply to calls placed to consumers who use a  VoIP service. 

Has there been any precedent set?

As reported in insideARM, the Fourth Circuit Court of Appeals ruled that calls made to a residential line using an autodialer can violate the TCPA if the residential line service charges for incoming calls. In Lynn v. Monarch Recovery Management, Inc., No. 13-2358, 2014 U.S. App. LEXIS 18858, — Fed. Appx.— (4th Cir. Oct. 2, 2014), the Fourth Circuit affirmed a District Court of Maryland decision holding a debt collector violated the TCPA when it used an (ATDS) to call a residential line that had been converted to a Voice over Internet Protocol (VoIP) service for which the debtor was charged a monthly rate, along with a fee for incoming calls and for transmission of incoming calls.

The called party was using a VoIP subscription that carried per-call charges to deliver numerous debt collection calls to the plaintiff. On the appeal, the court affirmed the lower court’s decision that because the VoIP service charged for incoming calls, it met the definition under the TCPA.

“… [t]he language of the TCPA goes beyond cell numbers, stating, “making any call…using any [ATDS] or an artificial or prerecorded voice…to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.

But, at least one other court has held that when a VoIP app requires a flat, monthly fee without incurring charges for each call, that VoIP service is not a “service for which the called party is charged for the call.” Karle v. Sw. Credit Sys., No. 14-cv-30058, 2015 WL 5025449, at *6 (D. Mass. June 22, 2015). Additionally, several courts outside the Seventh Circuit have weighed in, concluding that the call-charged provision applies to VoIP apps. “Except where there is no evidence that the called party was charged for the call, courts generally” recognize that, when a plaintiff pays for services on a per-call basis, like paying for minutes on a cell phone, the plaintiff has a viable claim under 47 U.S.C. § 227(b)(1)(A)(iii). See Jones v. Experian Info. Sols., No. 14-cv-10218, 2016 WL 3945094, at *7 (D. Mass. July 19, 2016).

Little more has been done by the judiciary to advance the analysis of VoIP calls under the TCPA than conduct a literal reading of the statute. Most recently in June of 2017, the court in Baemmert v. Credit One Bank, N.A., once again ruled VoIP calls that trigger a charge to the called party on a per use basis were subject to the TCPA.

In this case, the plaintiff claimed the defendant’s collection agencies placed calls to his VoIP number using an ATDS without the plaintiff’s consent. The defendant disagreed and argued such calls were not placed using an ATDS; and if they were, the calls were received by the plaintiff’s VoIP line and were therefore not subject to the TCPA.

On the parties’ cross motions for summary judgment, the court disagreed with the defendant and ruled in favor of the plaintiff. As of this writing I am not aware of an appeal of this ruling. This court’s 18-page analysis is none the less worth noting.

The undisputed facts established plaintiff’s phone was not a functioning cell phone with cellular service. The cellular service had been disconnected due to nonpayment. However, the plaintiff was able to place and receive calls on the phone using a VoIP app he downloaded to his cell phone which worked only when he was connected to the internet. Since the app plan charged the plaintiff for calls placed and received on a per call basis, the court opined the calls were made using a “service for which the called party is charged for the call” under 47 U.S.C. § 227(b)(1)(A)(iii).

If a VoIP service charges on a per-call basis, that service falls under the broad statutory language, “any service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). Until courts begin to apply the proper rules of statutory construction to this provision of the TCPA, callers must treat VoIP calls as calls to cells when using an ATDS, prerecorded message or artificial voice.

See also Rozanne’s opinion on the just released Breda v. Cellco Partnership case.

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Disclaimer: Ontario Systems is a technology company and provides this blog article solely for general informational and marketing purposes. You should not rely on the content of this material for any other purpose or as specific guidance for your company. Ontario Systems’ advice, services, tools and products described herein do not guarantee compliance with any law or industry standard. You are ultimately responsible for your own company’s actions and compliance efforts. Because everyone’s situation is different, you must consult your own attorneys, accountants, and/or other advisors to obtain specific advice on your company’s compliance, legal, tax, regulatory and/or other business needs. Despite Ontario Systems’ efforts to provide current and up-to-date information, you need to recognize that the information contained herein may become outdated quickly and may contain errors and/or other inaccuracies.

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BUFFALO, N.Y. – The employees of Mercantile Adjustment Bureau, LLC, an accounts receivable firm based in Buffalo, NY, collected over 1,200 food items including chili, baked beans and beef stew for local mobile food kitchen Hearts for the Homeless.

Hearts for the Homeless provides 50 to 100 people in the city of Buffalo with a hot meal each night and sends them home with a to-go bag which consists of a sandwich and other food items. In 2016 they fed approximately 12,000 people.

“There is a feeling of satisfaction of knowing that when we feed people at night, they will not go to bed hungry,” said Ron Calandra, Executive Director and Founder of Hearts for the Homeless.

In February 2016, Mercantile collected over 1,800 cans of tuna for the organization. With such a great response, the employees felt that continuing to help with the immediate need for chili, baked beans and beef stew in their October pantry would be essential heading into the winter months. “It’s because of people like the employees of Mercantile, who answer our plea, that make what we do possible,” said Donna Blarr, Office Manager at Hearts for the Homeless. “We are greatly appreciative for all they have done.”

Teams were created within the organization to see who could collect the most chili, baked beans and beef stew in a two week period. The prize was a pizza lunch.

“Watching the success of the second food drive contest showed me just how compassionate our employees are,” said Dan Lauer, AVP of Collections. “We are all proud that we are able to make a difference in our community.”

Mercantile plans to continue the food drive competitions throughout the year for Hearts for the Homeless. They have also added a winter coat drive to help the organization.

About Mercantile Adjustment Bureau, LLC

Mercantile Adjustment Bureau, LLC is a Buffalo-based full service accounts receivable management company providing third and first-party collections, specialty services and customer care/service. Morea at www.mercantilesolutions.com