Pub. 4 2014 Issue 4

9 FALL 2014 The numbers multiply because calls—which count even if no one picked up or no message was left—are repeated in at- tempts to reach the customer. Further complicating matters are calls made to numbers that were originally held by customers who have then changed their phone service and whose numbers have been recycled to unrelated parties. In the Chamber’s white paper, The Juggernaut of TCPA Litigation: The Problems with Uncapped Statutory Damages, it is pointed out that the technology and business practices were very different in 1991, resulting in special protections for cell phones, for example. Receiving calls on the old-style cell phones could be very expensive, for instance. The paper also notes that typically these matters don’t go to trial, but are settled, generally in fear of the potential monetary totals that could be reached. Consumers have been known to “stockpile” such calls, not reaching out to object or point out that they are not the proper party. Besides law firms that look for such cases, in which many class-action plaintiffs themselves receive minimal payments, there are numerous places online where consumers can find out how to work the law to actually trigger such contacts. Attempts to pass legislation that would provide some middle way or broad protections for essential and necessary contacts—potentially including a cap on legal damages—have not succeeded thus far. This is a compliance challenge that hinges on many factors, including the purposes of contacts and even how contacts are initiated, such as through various forms of automated or automation-assisted dialing. T HE MATTER OF CONSENT Against this backdrop, many companies actually promote the fact that they will reach out to their customers via call or text when they have news the customer should want to know. How often, for instance, do banks build into their product descriptions the fact that they will, in these times of concern over data hacks, privacy protection, and other worries, make helpful contact? You even find it in their television commer- cials for cards and other services. And even the Consumer Financial Protection Bureau, quite savvy to the latest technology, encourages banks to keep in touch with customers. Logic might dictate that providing contact numbers for calling or texting when a consumer applies for a product or service would amount to consent to be contacted using an automated dialing system, but consumer groups and plaintiffs have claimed that this is only implied consent, and not express consent that would protect the bank or other company taking and using the information. TCPA doesn’t explicitly address this, and FCC has ruled differently depending on purpose and mechanisms involved. Industry representatives, such as ABA, have worked to establish a line in the matter of consent, with some notable success, especially regarding informational calls. In a declaratory ruling that FCC made in 2008, a bit of certainty was gained. The agency held that: “We conclude that the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding debt.” When FCC was considering increased restrictions on autodialed nonmarketing calls to wireless numbers, ABA, the Financial Services Roundtable, and the Consumer Bankers Association pointed out that the many legitimate, even regu- latorily required reasons that a bank might need to contact a cell phone number made it necessary to protect such outreach. In a 2010 comment letter, the groups argued together that: n Hear me now? — continued on page 10 First, while there is no specific definition of “substantial injury,” it typically means that monetary harm has been sustained. In this case, the customer is being charged interest on a loan whereas before they were not.