“Consumer attorneys argue that multiple wrong number collection calls to the same phone number are intentional (thus subject to the $1500 [vs. the $500] per-call penalty), if the debt collector does not have in place adequate procedures for a consumer to communicate that the wrong number has been called.” The same penalty can be applied for intentionally calling cell phones. See Wrong Number Calls are Bounty for Consumers and Legal Morass for Collectors.
We asked dialer company IAT SmartDial to comment on the questions this statement raised in our minds and possibly in the minds of our members. We received the following responses from Dave Rudd and Kendra Fugal:
What are “adequate procedures” to avoid this fine? IAT recommends customers talk to their own legal counsel to determine if their dialing strategies are adequate to prevent fines or penalties. “Adequate” is a tough word to define and implies that if you do certain things then you won’t have problems. The agency or law firm must define what their procedures are, determine their level of comfort with risk and move forward. Litigation and Cell Phones is an evolving area of concern.
What technology is available to help? Using SmartDial, you can scrub for cell phones against a government list of known cell phone numbers. When using IVR messaging, the dialogues should include right-party identification, options to indicate a wrong number has been called and transfer-to-agent options.
One day a prospect called and suggested that our dialer be upgraded to screen for all wrong numbers before making a call. We do provide customers with a “Smart Dial,” but to think a wrong number could be identified before the actual call was placed, answered and verified, made us chuckle.
What does SmartDial do to make their products and services legally compliant? We provide our customers with the tools necessary to isolate identified wrong numbers and catch listed cell phone numbers before contacting them with their dialer. Then we offer training opportunities so that customers know how to use these tools. We consider all our products to be “compliance capable,” but recognize that it’s up to each customer to use (or not use) the tools provided to maintain their own compliance.
Do you recommend any list-scrubbing services, and if so who? SmartDial has its own cell phone scrubbing feature, Cell Scrub, so we recommend that our customers use that. It is integrated into the dialing technology and checks each phone number against a government list of known cell phone numbers as the dialer works through the list. It’s easier to have the product integrated with the dialer than to scrub a list and then run it through the dialer. Plus, with Cell Scrub, you can include a list of Consenting Numbers (cell phone numbers you’ve received permission to dial) and a list of Do Not Call numbers (numbers that have been labeled “do not contact with the dialer,” for whatever reason).
What do you say to clients who want to scrub for cell phones these days? It’s smart to be as careful as you can about contacting debtors via cell phones. Each company needs to determine whether cell phone scrubbing is the only necessary safeguard for them. They should always contact their legal counsel about decisions like this.
Like IAT, The National List of Attorneys cannot give legal advice. We can only give our members and clients a “heads-up” on issues to which they may need to give more attention. There is no way to prevent collection calls from being accidentally made to wrong numbers, at least the first time. Companies with technology that delivers or leaves pre-recorded messages (IVR) to wrong numbers risk being non-compliant with both TCPA and FDCPA regulations, because there is no “previous business relationship” with the called party. And the fines increase with the volume of calls, if those wrong numbers aren’t identified and pulled from the list. Calling cell phones without permission or a qualifying business relationship can also invite litigation and fines. Making sure that you have a plan in place and the technology to support it can save your business a lot of time and money in the long-run.
By Nancy Lender, The National List of Attorneys