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STOP Collector Blog From the law firm of Lemberg & Associates

Attorneys General Unite to Fight Debt Collection Calls to Cell Phones

The debt collection industry has been chomping at the bit in anticipation of the passage of H.R. 3035, the “Mobile Informational Call Act of 2011.” The bill amends the Telephone Consumer Protection Act to make it legal to robo-call cell phones. This has the potential to dramatically impact the debt collection industry, as it uses predictive autodialers to reach consumers. The argument in favor of the bill is that many consumers exclusively use cell phones, so it is impossible to reach them via a landline. The argument against the bill is that it places an unfair burden on consumers, since many consumers have to pay for the cell phone minutes. The counterargument is that most people have unlimited calling plans, so they wouldn’t be financially impacted by robo-calls to their cell phones.

Now, all but two Attorneys General have joined together in opposition to H.R. 3035, sending a letter to the House Committee on Energy and Commerce, which is considering the legislation. The letter states:

H.R. 3035 would change the law and undermine federal and state efforts to shield consumers from a flood of solicitation, marketing, debt collection and other unwanted calls and texts to their cell phones. In the process, H.R. 3035 also would shift the cost of these calls – such as debt collection and marketing calls – to consumers, placing a significant burden on low income consumers. Furthermore, H.R. 3035 will create obstacles to effective enforcement of state consumer protection laws. H.R. 3035 goes far beyond the stated goal of giving debt collectors a new avenue to contact debtors and unnecessarily allows businesses to robocall or text consumers without the consumers’ prior express consent.

It goes on to say:

While it is estimated that twenty-five percent of American households have given up their landlines and rely on their cell phones for contact, it is erroneous to assume that all consumers pay a flat rate for service. By the end of 2011, it is estimated that 25% of U.S. consumers will use prepaid wireless phones. In addition, prepaid users tend to belong to lower income households. Therefore, H.R. 3035 proposes to shift the cost of debt collection to the consumers and, in particular, to those who can least afford to pay it.

The letter also points out the potential public safety implications:

Allowing robocalls to cell phones endangers public safety because of the inevitable increase in calls to wireless phones. Few can resist answering the “shrill and imperious ring” of the wireless telephone while driving. A 2009 study by the National Highway Traffic Safety Administration found that cell phone use was involved in 995 (or 18%) of fatalities in distraction-related crashes. More calls will likely mean more distracted drivers and, inevitably, more accidents.

The Attorneys General also point out the H.R. 3035 would preempt state consumer protection laws, essentially “gutting state regulations concerning harassing calls and faxes.” Instead, they advocate revising the legislation to clarify that the bill does not preempt state laws and, arguably more importantly, change the bill’s definition of “prior consent.” As written, H.R. 3035 says that simply providing your telephone number for any transaction at any time constitutes your consent to be robo-called on your cell phone. In other words, if you provide your phone number at the checkout stand or on a website, this bill says that you’re giving your consent to be robo-called on your mobile phone. The Attorneys General propose amending the bill to say that consumers must give consent to be called in writing, and “only after clear and conspicuous disclosures….Furthermore, the law should clearly allow consumers to easily revoke their consent if they no longer want to receive and pay for intrusive robocalls on their cell phones.”

We applaud the Attorneys General for taking this important stand, and hope that Congress heeds their advice.

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Author
Sergei Lemberg

Sergei Lemberg is the principal at Lemberg & Associates, a consumer law firm that defends consumer rights in the areas of fair debt collection law, fair credit law, and lemon law, among others. He is regularly labeled by the debt collection industry as one of the “most active consumer attorneys” in the U.S.

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