In the past, debt collectors would call "by hand" - that is, they would dial the number personally. But given the low rate of contact, it is more efficient to have a computer system make all of the calls and then if a person answers the phone, the computer will send the call into the headphone of a collector and pull up your information on the collector's computer screen. So the basic idea behind an "auto dialer" call is that it was dialed by a computer without human involvement. Normally the collectors will direct the frequency of contact (5 times a day, every 2 days, etc) and then the computer or telephone system will make the calls. One harassing aspect is sometimes you answer and if there is not a collector available the system hangs up on you or it plays a pre-recorded message "Please hold for the next available representative" which is discussed in the next step.
WHAT ARE PRE-RECORDED MESSAGE CALLS?
As the name suggests, this is a message from either a human or computer that is not given "live" but instead is recorded. The computer or mechanical voice is usually very easy to detect. The human voice can be more difficult but normally you can tell. Either the message is too perfect and you have five of them on your voicemail that are identical or your name will be said by someone else. The message will sound normal "This message is only for ________ [odd computer sounding voice saying your name], if you are not __________ [again the computer voice of your name], then please hang up....." Or it can be when you answer the phone that you hear a pre-recorded message about "hold for the next available representative" which means it is an auto dialer and a pre-recorded message.
HOW DO I PROVE THE CALLS WERE MADE?
Save your voicemails that have the pre-recorded message that was left for you. Pick up the phone and see if a human being is on there when you answer. Ask the collector if you are being called with an autodialer. Make detailed notes immediately after determining any of this information. Take a picture of caller id screens as this can show the calls coming in. Often collectors will conveniently forget about 95% of the calls they made until they realize you have proof and then they suddenly discover that you are in fact correct. We have sued collectors who swore to us they only made 5 calls but then when the depositions came, they admitted to making over a 100 calls. So any documentation you can get is wonderful and will truly be helpful to your case.
WHAT BENEFITS DO I GET FROM THE TCPA?
Congress has treated our cell phones with the same level of respect as a hospital room phone (collectors use to autodial hospital rooms even after the patient left!) and so the statutory damages are pretty serious. You can obtain actual damages but most people are satisfied with the statutory damages. It is $500 per call or $1500 per call. The $500 is if the call was unintentional. The $1500 is for intentional violations of the law. The more you tell the collector to stop calling your cell phone and that there is no permission, the more likely the calls will be deemed "intentional" and you can receive the $1500 per call. Given how these collectors will sometimes call people ten times a day with an auto dialer, you can see how powerful this law is for consumer protection.
OK I KNOW WHAT THESE CALLS ARE - WHEN ARE THEY ILLEGAL?
A collector can only use auto dialed calls or pre-recorded messages to your cell phone if you gave permission. This area of the law is somewhat controversial but if you gave the original creditor (credit card, car loan, etc) your cell phone number when you opened up the loan or card, then the collector will have permission. The collectors argue that if you ever gave your cell phone to the original creditor, this is "permission" but that is not what the law says. Nevertheless, the safest thing to do is to "revoke" permission over the phone and in writing (certified mail, return receipt requested), so there is no question any more about permission. Then all the calls after you revoke permission will certainly be illegal if the collectors continue to unleash the auto dialed and pre-recorded messages against your cell phone.
Collectors hate this law with a passion. They are used to the Fair Debt Collection Practices Act (FDCPA) which has a maximum of $1000 statutory damages. Collectors can easily and often violate the law with not much downside (note - you can sue for actual damages but oddly many attorneys don't do this) to violating the FDCPA. But when we sue them for a 100 calls under the TCPA, they are in shock. They just can't believe they face this sort of exposure. They think they have a God given right to wear out your phone with multiple auto dialer calls a day, every day. Congress had to take such drastic means to try and stop not only collectors but also telemarketers that were terrorizing people's cell phones. If you are receiving collection calls on your cell phone, look into this law and contact a consumer protection attorney in your area to see if this law can be used to help you stop abusive debt collectors.
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