So why did we add the last part revoking consent into the debt validation letter?
Let me explain a little more here. The TCPA has deferred to the Federal Communications Commission (FCC) the authority to make rulings that clarify and interpret the TCPA statute. In a 2008 decision, the FCC held that the act of applying for credit counts as granting a company consent to make auto-dialed calls to the debtor’s cell phone in connection with that debt. This consent is not limited to the original creditor, but also extends to any debt collectors trying to collect on that debt. What does this mean for you? It means that by default, if you are receiving auto-dialed calls from a debt collector in connection with a debt that you applied for, then the debt collector is NOT violating the TCPA by sending you auto-dialed messages.
[side note # 1: The federal district courts seem to be aware that this FCC ruling is in direct opposition to the plain language of the TCPA, which requires strict explicit consent to any company, debt collector or not, in order for them to use an auto-dialer to call you. However, the district courts do not have the authority to overturn this obviously incorrect FCC ruling – only an appellate court can do that. As of this writing, the appellate courts have been silent on this issue; probably because there has not been a case brought before them challenging this decision, because these cases are always settled before they get to that point, but that is just my own commentary]
[side note # 2: In another FCC ruling, the commission held that the person placing the calls has the burden of proving that the recipient did in fact provide consent either to them or the original creditor. The law says that a debt collector has implied consent to use an auto-dialer to call you if you gave your cell number to the original creditor. Whether they can prove that in court is an entirely different matter. They would need to produce something in writing showing that the debtor gave the original creditor a cell phone number, or a phone call recording showing the same.]
This brings us to the issue of REVOKING that consent from any debt collector attempting to collect on an alleged debt. The district courts are split on the correct way to go about this. In a 2010 decision, Starkey v. Firstsource Advantage, LLC., the court held that because the case was substantially a debt collection issue, and not a telemarketing issue, that this consent must be revoked in WRITING. This decision essentially applied the FDCPA standard of ordering a cease of communication in writing to a TCPA claim. Several courts have agreed with this decision in subsequent cases. By contrast, In a 2011 decision, Gutierrez v. Barclays Group, the court held the ORAL revocation of consent is sufficient under the TCPA. Other courts have agreed with this reasoning as well.
So, in order to be thorough, and to develop a strategy that would effectively revoke this consent from the debt collector that would satisfy a judge in any federal court, we have placed this revocation of consent clause into the debt validation letter in writing, so there are no questions that any consent to place autodialed calls to cell phones, whether express or implied, has been revoked. Period.
(I’d like to thank Matt. Z for the research on this insight mentioned above. It is shared knowledge like this that keep us kickin’ a$$!)
Also, don’t forget to download the debt validation document!