The legislature may make the law, but our judicial system interprets the law. This means that a law today can change tomorrow. This is especially true in consumer law. Currently, consumer, and specifically TCPA cases, are filed more than any other case in federal court. Thus, consumer attorneys are always diligently working on the ever-changing law due to the crazy dynamic it presents.
The vast majority of creditors and debt collectors use computerized systems to call consumers when attempting to collect consumer debts. The reason for this is simple; computer systems can make thousands of calls each day, while humans manually dialing cell phone numbers cannot. Many of you may have experienced this when answering your cell phone. Many times, there is a gap of silence (“dead air”) before a representative responds to you. Other times, you may say “hello” a few times, and then the call abruptly ends. Both of these scenarios are good indicators that creditors and debt collectors are using some form of an automatic telephonic dialing system (“ATDS”) rather than manually dialing your cell phone. Until recently, these computerized systems fell within the purview of the Telephone Consumer Protection Act. Essentially, this meant that any ATDS call made to your cell phone without your consent subjected creditors and debt collectors to up to $500 to $1500 per call to consumers for violating the TCPA. That is until a recent case out of the South District of Florida came down. See Strauss v. The CBE Group, Inc. and Verizon New England, Inc., No. 15-62026, 2016 WL ——- (S.D.Fla., March 28, 2016).
The Effect of Strauss v. CBE
In Strauss, a consumer received numerous computerized calls to his cellular phone from a debt collector. The debt collector argued that their new system, a Manual Clicker Application (“MCA”), didn’t meet the definition of an ATDS under the TCPA, and thus, they were not in violation of the TCPA. Strauss’ attorneys argued that the MCA system was still an ATDS because the computer system was still making the call. Unfortunately, in what most believe to be a flawed opinion, the Court agreed with CBE. The Court’s analysis centered around the clicking of a mouse and the pressing of the “Enter” button on the keyboard. In short, the Court held that pressing “Enter” or clicking a mouse is some form of human intervention. Thus, because this MCA system had a minutia of human intervention, the MCA system was not considered an ATDS, allowing debt collectors and creditors to use these types of systems without the threat of violating the TCPA. Unfortunately, many creditors and debt collectors are starting to use these “point and click” computer systems when calling consumers. The bleak silver lining from this case is that it is isolated to solely the Southern District of Florida. In other words, as of now, only cases that originate from the Southern District of Florida will have this bad law to overcome. However, debt collector and creditor attorneys across the country are citing to Strauss to challenge TCPA cases.
One important fact to note – even though Strauss has undoubtedly made it harder to win TCPA cases, it isn’t a complete wash. If creditors and debt collectors are leaving pre-recorded messages on your voicemail, there is a good possibility they are violating the TCPA even in light of Strauss.
What Do I Do If I Am Receiving Computerized Calls From Creditors and/or Debt Collectors?
In one of my previous blogs, I explain in detail what you should do if you are receiving collection calls. In short, you must document the calls and tell collectors to stop calling. If the calls are in violation of the TCPA, and if the calls continue after you tell them to stop, they most likely are in violation of federal (“FDCPA”) and/or state collection laws (“FCCPA”). That is why it is imperative you document these calls. The moment you receive your first call after you have told these debt collectors and creditors to stop calling you is the moment you have a potential case. What you will need to do is contact a consumer law firm that regularly handles these types of cases. I will speak to any potential client the moment they have received that first call from a debt collector or creditor and told them to “Stop Calling”. This is when I start my case evaluations with most clients. If you believe you may have a case, call me or simply email me at firstname.lastname@example.org and tell me what has happened.