Obviously, it is annoying to receive unwanted telephone calls from anyone, especially telemarketers and debt collectors. When calls are about a debt you don’t even owe, or to your cell phone, or placed by an autodialer, they are downright infuriating. There are a number of overlapping state and federal consumer protection statutes – 93A, FDCPA and TCPA – that can be used to stop harassment and penalize violators.
93A prohibits unfair and deceptive conduct directed at Massachusetts consumers. The Massachusetts Debt Collection Law, c. 93 § 49, prohibits the collection or attempted collection of a debt in “an unfair, deceptive or unreasonable manner.” Any violation of 93 § 49 is considered an “unfair or deceptive act or practice” under 93A. 93 § 49 specifies four particular practices deemed to be unfair, deceptive or unreasonable, of which harassment is one.
FDCPA prohibits further contact upon written request. FDCPA requires validation of a questioned debt. TCPA prohibits calls initiated by an auto dialer to a cellular telephone. If the consumer did not provide their cell phone number to the original creditor or the debt collector, the debt collector violates the Telephone Consumer Protection Act (“TCPA”) every time it calls the consumer’s cell phone by using an auto-dialer or predictive dialing machine. TCPA violations occur when the caller causes a phone to ring.
The four most important things the FDCPA provide are:
- the right to be be left alone by debt collectors upon written request;
- the right to dispute a debt and to be shown that there is a valid debt being collected;
- the right to be undisturbed by abusive, deceptive, and unfair debt collection practices;
- to receive up to $1,000 for each such violation.
The three most important things the TCPA provide are:
- the right to be undisturbed by calls initiated by an automatic dialer, or “robo dialer” to a cell phone
- the right to be undisturbed by text messages (without express consent of recipient).
- to receive $500 in damages for each such violation.
FDCPA: up to $1,000, attorneys’ fees, and costs per call.
TCPA: $500 per violation and, if the violation is willful and knowing, up to $1,500 per call.
There are exceptions to the TCPA. The most commonly invoked exception is “express consent.” The FCC opined 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 the debt.” 2008 TCPA Order at ¶9. Tang v. Enhanced Recovery, LLC. Annoying debt collection calls, even those to the wrong person, are not necessarily violations. See: NY Federal Court Agrees: No Telephone Consumer Protection Act Violation for Misdirected Prerecorded Debt Collection Calls, and Santino v. NCO.
These days, most people do not have landlines, and use only a cell phone as their primary phone number. When a debt collector is hounding you on your cell phone, the question of course becomes, “Can A Debt Collector Call My Cell Phone?” Basically, the answer is no, unless you gave the original creditor your cell phone number.
How to make calls stop?
Should You Hire an Attorney?
Yes. If you do not have a lawyer, hold your horses. Before firing off a letter to the debt collector yourself, Continue reading