The document discusses the Telephone Consumer Protection Act (TCPA) and the Federal Communications Commission's (FCC) role in regulating the law. It summarizes key aspects of the TCPA including provisions regarding autodialing cell phones, consent requirements, and exemptions. The FCC has issued rulings clarifying that debt collection calls made to cell phone numbers provided by consumers to creditors do not violate the TCPA. The document also provides an overview of the speaker's experience working on TCPA issues and litigation.

1. 1
The State of the TCPA: Consent, Dialers, the
FCC – the Law is in Flux
Wednesday, June 12, 2013
2:00 p.m. – 4:00 p.m. EST
Presented by:
David Kaminski, Esq., Carlson & Messer LLP

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2

3. 3
DAVID J. KAMINSKI
David Kaminski is a partner at the law firm of Carlson & Messer LLP, a Los Angeles-based civil
litigationdefense firm. Mr.Kaminski'spracticespecializes inthedefense ofcollectionagencies and
creditors under the Fair Debt Collection Practices Act ("FDCPA"), the Fair Credit Reporting Act
("FCRA"),theTelephoneConsumerProtectionAct ("TCPA")andrelatedstateandfederalconsumer
protection statutes. He has successfully represented clients throughout the United States and
practices inallstate and federal courts, the9th Circuit Court ofAppeals,and theCaliforniaSupreme
Court. Mr. Kaminski has extensive experience in multi-district and class action litigation with
emphasison theFDCPA, FCRA, TCPA, and state invasionof privacyand recording act claims. He
also serves as outside compliance counsel to numerous companies. In this capacity, he has
developed policies, procedures, and compliance and training programs to minimize the risk of
liabilities for the debt collection industry.
Mr. Kaminski is a member of the attorney panel of the ACAInternational. He was retained bythe
ACA to coordinate the defense strategies in a TCPA class action lawsuit, Leckler v. CashCall, in
which a U.S. District Court in California sought to invalidate a 2008 FCCOrder which favored the
debt collection industry. Mr. Kaminski successfully assisted in overturning the Court’s erroneous
decisionwhich would have had harmful consequences to theentire collection industry. Hewas also
one ofthe coordinating defenseattorneys inthe mass TCPAlitigation entitled, Kinder Coordinated
Litigation, involving over 150 TCPA lawsuits filed in the California State Courts.
Presenter Profile

4. 4
Mr. Kaminski has published numerous articles on compliance and the evolving interpretations of
consumer protection laws. He has lectured on such topics as the FDCPA, the FCRA, the TCPA,
classactionstrategies in Stateand Federalcases, recordingactclaims,trends in consumerlitigation,
risk management issues, and other related topics throughout the United States for the ACA
International, the National Association of Retail Collection Attorneys, the California Association
of Collectors and its chapters, DBA International, Collections & Credit Risk Conference, the
CommercialLawLeague ofAmerica, the California Creditors BarAssociation, AccountsRecovery
Summit, and DAKCS Software Systems, Inc. Mr. Kaminskihasalso been a long-time lecturerfor
the California Continuing Education of the Bar.
E-Mail: kaminskid@cmtlaw.com
CARLSON & MESSER LLP
5959 W. Century Blvd., Ste. 1214
Los Angeles, CA 90045
(310) 242-2204 - Direct
Presenter Profile

5. 5
Agenda
The TCPA
• The Law, the FCC’s Role, Regulations and the
FCC’s 2008 TCPA Order
• Express Consent to Call Cell Phones.
• Automatic Telephone Dialing Systems,
Predictive Dialers, and Preview Dialing
• Compliance Strategies

6. 6
Telephone Consumer Protection Act of 1991
• Enacted in 1991; Pub. L. No. 102-243, 105 Stat. 2394, December
20, 1992 codified at 47 U.S.C. § 227.
• Intended for actions to be brought in small claims courts. See
Local Baking Prods. v. Kosher Bagel Munch, Inc., 2011 N.J.
Super. LEXIS 143 (App.Div. July 19, 2011) (granting motion to
dismiss class - class lacked “superiority” in light of TCPA’s
individual incentives of minimum award of $500 and ability to be
brought in small claims court);
• Legislative intent was to curb telemarketing and avoid transferring
the costs to consumers.
• Other industries fell into purview of TCPA by virtue of dialer
technology being used.

7. 7
Telephone Consumer Protection Act of 1991
The TCPA prohibits the use of automatic telephone dialing systems and
prerecorded messages to call wireless devices - the “autodialer” ban:
§ 227(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States or any person
outside the United States if the recipient is within the United States—
(A) to make any call (other than a call made for emergency purposes or
made with the prior express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded voice. . .
(iii) to any telephone number assigned to a paging service, cellular
telephone service, specialized mobile radio service, or other radio common carrier
service, or any service for which the called party is charged for the call.
(Emphasis added)

8. 8
Telephone Consumer Protection Act of 1991
Is a Charge to a Cell Phone needed to Have a Claim?
The party does not have to be charged for calls to cell phones to have
standing to sue. See, e.g., Martin v. Leading Edge Recovery Solutions, LLC,
2012 U.S. Dist. LEXIS 112795 (N.D. Ill. Aug. 10, 2012)(citing several cases);
Torres v. Nat'l Enter. Sys., 2012 U.S. Dist. LEXIS 110514 (N.D. Ill. Aug. 7,
2012)(nuisance and invasion of privacy sufficient to establish Article III
standing aside regardless of monetary loss); Smith v. Microsoft Corp., 2012
U.S. Dist. LEXIS 101197 (S.D. Cal. July 20, 2012)(same)

9. 9
Telephone Consumer Protection Act of 1991
Cont.
§ 227(b) Restrictions on use of automated telephone equipment
(1) Prohibitions
It shall be unlawful for any person within the United States or any
person outside the United States if the recipient is within the United States…
. . . (B) to initiate any telephone call to any residential telephone line
using an artificial or prerecorded voice to deliver a message without the prior
express consent of the called party, unless the call is initiated for emergency
purposes or is exempted by rule or order by the Commission under paragraph
(2)(B) (Emphasis added).
• Call Forwarding
Call Forwarding does not create TCPA claim - Even if a landline call is
forwarded to cell phone FCC has ruled: "action on the part of any residential
subscriber to forward certain calls from their wireline device to their wireless
telephones does not subject telemarketers to liability under the TCPA." See, 20
FCC Rcd. 3788, 3807 at ¶48.

10. 10
TCPA Damages
• The TCPA provides for monetary damages:
– Damages for standard violation - $500 per violation (42 U.S.C §
227(b)(3)(B)) or actual damages, whichever is greater
– Damages for willful or knowing violation – the damages are up to
3 times the award for a standard violation (47 U.S.C § 227(b)(3))
–
– The TCPA does not provide for recovery of attorney’s fees (But,
see discussion re: TCPA class actions)

11. 11
The FCC’S Role in the TCPA
• Congress has delegated the FCC with the task to make rules and regulations to implement
the TCPA. See 47 U.S.C. § 227(b)(2)
• Pursuant to this authority, the FCC has implemented regulations which seek to curb
excessive “telemarketing” calls—the purpose of the TCPA. (See Satterfield v. Simon &
Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009)). – Not in reality – Rule affect ALL
industries using dialer technology.
• Many FCC regulations mirror the TCPA. Certain regulations provide exemptions to liability
for prerecorded debt collection calls to residences:
• The FTC held a summit on October 18, 2012 on the use of dialing technology to reach
consumers. FTC made the distinction between illegal telemarketing calls and automated
informational calls. FTC summit focused on limiting illegal robocalls.
(http://www.ftc.gov/bcp/edu/microsites/robocalls/)
• The FTC may influence the FCC, as Federal telemarketing regulation “involve[s] both the
FCC and the FTC.” FTC v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 856-857 (10th
Cir. Colo. 2003)

12. 12
The FCC’s Role in the TCPA - Exemptions
Exemption that favors debt collection industry for calls to residential lines:
- Exemption for commercial calls which do not transmit an unsolicited advertisement
or constitute a telephone solicitation (47 C.F.R. § 64.1200(a)(3)(iii)) - and that do not
adversely affect privacy rights. (See 1992 FCC Order, par. 39)
- The regulations exempting pre-recorded debt collection calls to residences from
TCPA liability are in line with the FCC’s consistent position that prerecorded debt
collection calls to residences are not telephone solicitations and do not constitute
telemarketing. (See 2008 FCC Declaratory Ruling, pars. 5 and 11)
- FCC emphasized that “debt collection calls” fit within an exemption to the TCPA’s
prohibition on prerecorded messages for calls that do not adversely affect the
privacy rights that statutory section 227(b) is intended to protect and do not include
the transmission of any unsolicited advertisement. 10 FCC Rcd. 12391, ¶ 16 (Aug.
7, 1995).)

13. 13
TCPA – Exemption for Debt Collection Calls to
Landlines – and Wrong Number Calls
227(b)(1)(B)[residential wireline] provisions impose liability for pre-recorded message calls
made without the prior express consent of the called party :
- Exemption for commercial calls which do not transmit an unsolicited advertisement (47
C.F.R. § 64.1200(a)(2)(iii)) and that do not adversely affect privacy rights. (See 1992 FCC
Order, par. 39)“
- “Wrong Number” Debt Collection Calls to Landlines Likely Exempt
– Meadows v. Franklin Collection Serv., Inc., 414 Fed. Appx. 230 (11th
Cir. Ala. 2011);
2010 WL 2605048, at *6 (N.D. Ala. June 25, 2010) (summary judgment for defense
because call made under “debt collection circumstance”. Calls fall under EBR and
CC exemptions); Santino v. NCO Fin. Sys., Inc., 2011 WL 754874 (W.D.N.Y. Feb. 24,
2011)
– IMPORTANT - See Hoover v. Monarch Recovery Mgmt., 2012 U.S. Dist. LEXIS
120948 (E.D. Pa. Aug. 24, 2012) even where non-debtor informs caller to stop calling
and calls continue: “I agree with . . . Franasiak v. Palisades Collection, LLC that it is
up to the FCC to determine whether a non-debtor's privacy rights have been
violated . . . by classifying all debt collection calls as within their exceptions to the
TCPA, the FCC has made that decision. 822 F.Supp.2d 320, 325 (W.D.N.Y. 2011).

14. 14
The FCC’s Role in the TCPA - Exemptions
The Established Business Relationship Exemption:
•The exemption for pre-recorded calls to a residence based on an
established business relationship (EBR has been eliminated by the
FCC’s February 2012 FCC Report and Order.)
•Telemarketers have until 10/16/2013 to cease utilization of the EBR
relationship as evidence of consumer consent to receive prerecorded
telemarketing calls).
•Debt collectors have been relying on this “telemarketer-oriented”
exception, so likely they have until 10/16/2013 to also cease use of the
EBR exemption.

15. 15
The FCC’s Role in the TCPA - Exemptions
Exemption for Residential Line May Be Limited in VOIP Phone
Case:
•Lynn v. Monarch Recovery Mgmt., 2013 U.S. Dist. LEXIS 41700 (D. Md.
Mar. 22, 2013)
•Court holds that 47 U.S.C. 227(b)(1)(A) and (b)(1)(B) are not mutually
exclusive
•Although call at issue was to residential line, Plaintiff also alleged
“charged for call,” and therefore Plaintiff was entitled to bring (b)(1)(A)
claim
• Phone at issue was 'attached' to VOIP equipment.
•Court’s Analysis thin on 227(b)(1)(A) vs. (b)(1)(B) issue

16. 16
FCC 2008 Declaratory Ruling – Prior Express
Consent
• ACA Files October 2005 Petition to request that debt collection industry
be exempted from TCPA
• FCC Issues Declaratory Ruling - Released January 4, 2008 – FCC
clarifies prior express consent to creditor and debt collection industry and
rules as follows:
• “Prior express consent” defined for creditors and debt collectors:
– “In this ruling, we clarify that autodialed and prerecorded message
calls to wireless numbers that are provided by the called party to a
creditor in connection with an existing debt are permissible as calls
made with the ‘prior express consent’ of the called party.” Calls
placed by a third party collector on behalf of that creditor are treated
as if the creditor itself placed the call. (FCC 2008 Ruling, pars. 1 and
10)
– Consent must be provided to the Creditor (for FCC pass through
consent to apply)
– Can consent be given directly to debt collector? Yes!

17. 17
FCC 2008 Declaratory Ruling – Prior Express
Consent
Prior Express Consent:
– Can be verbal or in writing. (Note: The TCPA did not specify how consent must be
obtained – Clarified by FCC in 2/15/12/ Report and Order)
– See, e.g., Greene v. DirecTV, Inc., 2010 U.S. Dist. LEXIS 118270 (N.D. Ill. Nov. 8,
2010)(orally providing cell number to credit bureau is prior express consent to
potential creditor who receives fraud alert from credit bureau)
– Via website - Roberts v. Paypal, Inc., 2013 U.S. Dist. LEXIS 76319 (N.D. Cal. May
30, 2013)(providing cell phone number to defendant via website constituted prior
express consent)
– Must be provided by the Consumer – not relative, friend etc.
•Timing of “deemed” Consent: FCC Ruling says consent is “deemed” provided only if given
by debtor to creditor “during the transaction that resulted in the debt owed” (FCC Ruling,
Par. 10.) However, FCC also says: Consent is proper if wireless number was provided by
the subscriber “in connection with” the existing debt. (FCC 2008 Ruling; Moore v.
Firstsource Advantage LLC 2011 U.S. Dist. LEXIS 104517 (Voluntary providing of phone
number to constitute consent does not require number be given at time account is activated).
[Also See – Meyer v. Portfolio Recovery Assocs., LLC, 2012 U.S. App. LEXIS 21136 (9TH
Circ. Cal. Oct. 12, 2012).]

18. 18
What Is Consent?
Meyer v. Portfolio Recovery Assocs., LLC, 2012 U.S. App. LEXIS 26708 (9th
Cir. Cal. Dec. 28, 2012) – 9th
Circuit Court of Appeals
-District Court certified a provisional class of all persons using a cellular telephone
number that defendant did not obtain either from a creditor or from the Injunctive
Class member (i.e., a skip-tracing class)
-In Initial 9th
Circuit Opinion: In initial opinion (696 F.3d 943 (9th Cir. Cal. 2012)) ,
Court clarifies “deemed”,i.e., pass through consent): “Prior express consent is
deemed granted . . . only if [number] was provided at the time of the transaction
that resulted in the debt at issue (Citing FCC 2008 Order, par. 10). [Note: Most
courts follow this initial interpretation]
-The Ninth Circuit retracted this limited definition of consent in amended
opinion: “Pursuant to the FCC 2008 ruling, prior express consent is consent to call
a particular telephone number in connection with a particular debt that is given
before the call in question is placed.” 2012 U.S. App. LEXIS 26708 at *8.

19. 19
What Is Consent?
Meyer v. Portfolio Recovery Assocs., LLC, 2012 U.S. App. LEXIS
26708 (9th Cir. Cal. Dec. 28, 2012)
-Skiptracing Problematic - 9th
Circuit rejected argument that there
might have been consent for skip traced numbers because
“[Defendant] does not point to a single instance where a cellular
telephone number that had been given by the debtor to the original
creditor was also found by [Defendant] via skip-tracing.”
-Plaintiff is a suitable class representative despite prior criminal
convictions.
-Meyer - 9th
- The amended opinion is now consistent with the FCC’s
2008 ruling. So long as consent was provided by a consumer “in
connection with” a debt the calling party has consent to call via
automatic telephone dialing systems and pre-recorded messages.

20. 20
What Is Consent?
• Prior Express Consent:
– Can be provided by spouse? - See Gutierrez v. Barclays Group, 2011 U.S. Dist.
LEXIS 12546, 8-9 (S.D. Cal. Feb. 9, 2011)("common authority" over debtor’s cellular
telephone gives Defendant consent.). Osorio v. State Farm Bank, F.S.B., 2012 U.S.
Dist. LEXIS 70466 (S.D. Fla. May 9, 2012). Factual inquiry a problem.
– Terms of consent may be limited. See, e.g., Weiss v. Pittsburgh Penguins, Case No.
12-04585, (C.D. Cal. Filed May 25, 2012) (class action TCPA complaint whereby
plaintiff alleges he was to receive no more than three text messages a week from
sports team. Court held that Defendant did not exceed consent because purpose of
contract to inform fans of developments would be frustrated by limiting text
messages to a maximum of three a week.)
Do Confirmatory Text Messages Exceed Consent?
Soundbite Petition:
– November 29, 2012, FCC Declaratory Ruling - sending a one-time confirmatory text
message within five minutes of receipt of a consumer's request does
not violate the TCPA so long as the sender had prior express consent
to send text messages using an automatic telephone dialing system.

21. 21
What Is Consent?
• Prior Express Consent – 2008 FCC Consent Ruling Rejected:
– Mais v. Gulf Coast Collection Bureau, 2013 U.S. Dist. LEXIS 65603 (D. Fla. 2013)(Now
Certified for Interlocutory Appeal on 4 issues)
– Court invalidates FCC’s 2008 Ruling as being contrary to TCPA because FCC
Consent ruling is “implied consent” not “express consent.” Congress’ language in
TCPA controls. Violates Supreme Court Statutory Rules
– Say Hobbs Act does NOT apply.
– The FCC’s consent ruling only applies (if at all) in the creditor-debtor collector
circumstance, not to transactions involving the provision of medical care (court cites
FCC 2008, par. 10)
– Even if FCC ruling applies to medical debt, creditor was not the entity for whom debt
collector was collecting debt.
– For FCC ruling to apply, cell phone number had to be provided by debtor to creditor
“during the transaction that resulted in the debt owed.” (Conflicts with Meyer)

22. 22
What Is Consent?
• Medical Debt – 2008 FCC Consent Ruling Applied:
Mitchem v. Ill. Collection Serv., 2012 U.S. Dist. LEXIS 126017 (N.D. Ill.
Jan. 20, 2012)
–Plaintiff gave his cell phone number to Midwest Orthopedics when he received
treatment there.
–Plaintiff claimed he did not understand that, if he failed to pay the bill, Midwest
would give his cell phone number to defendant to collect the debt. (Id. 14-18.)
–The Court held under the TPCA, Plaintiff had given consent to be called
–HIPAA not applicable and does not require a medical provider to have any
consent to use his cell phone number to obtain payment for its services” 45 C.F.R.
§ 164.506(a),(c)(1).
–Under HIPAA, the phone number could be used as long as it was “reasonably
necessary” to obtaining payment. 45 C.F.R. 164.514(d)(3)(i)
–7th
Circuit Ruling – challenge to final FCC ruling is barred.

23. 23
What Is Consent?
• Prior Express Consent – Medical Debt
– Manno v. Healthcare Revenue Recovery Group, LLC, 2013 U.S. Dist.
LEXIS 75959 (S.D. Fla. May 30, 2013)
– The defendant argued that the putative class members tendered their
telephone numbers to the hospital at the time of their medical treatment
and therefore it had consent under the TCPA
– The Court in Manno held: “While this is not the place to adjudicate the
merits of Defendants' consent argument, the point is that it does not defeat
class certification. The uniform consent argument, based on the hospital
admissions paperwork, is subject to classwide resolution, as all putative
class members filled out the same paperwork.”

24. 24
What Is Not Consent?
• The Following Are Not “Prior Express Consent:”
– Phone number capture through Caller ID (ANI).
– Express request not to call cell number (verbal or written ok per
TCPA and FCC 2008 Order, but see Gager decision.)
– Consent provided to one creditor or collector is not consent to
call on behalf of other creditors or collectors.
– Skip tracing dangerous – see Meyer v. Portfolio 2012 U.S. App.
LEXIS 21136 (9th Cir. Cal. Oct. 12, 2012) - can give rise to
potential class action.

25. 25
What Is Not Consent?
• Is PEC Limited to Creditor-Debt Collector?
– Thrasher-Lyon v. CCS Commer., LLC, 2012 U.S. Dist. LEXIS 125203
(N.D. Ill. Sept. 4, 2012) -
• FCC 2008 ruling re: consent is limited to creditor/debtor context, not
to debt collector generally. Cites FCC 2008, par. 10. Collecting on
insurance subrogation claim is not FCC consent from creditor to
collector.
• Court also held: consent to call cell phone requires consent to
receive robocalls and pre-recorded messages, not just consent to
receive telephone calls.
• In creditor/debtor context per FCC Rules, where plaintiff voluntarily
provides telephone number to the creditor, debt collector has
consent.
• Case was on appeal to 7th
Circuit. Appeal dismissed. Case settled.

26. 26
Who Is Responsible for Proving “Consent”?
• Creditors Responsible:
– Per the FCC, Creditors are in the best position to have records kept in usual course
of business showing consent:
• Purchase agreements, sales slips, credit applications, etc. [does this suggest
origination for “deemed consent”?]
– Creditor bears responsibility - “Calls placed by a third party collector on behalf of
that creditor are treated as if the creditor itself placed the call.”
– Collectors Responsible Too!
TCPA Defendants may have Burden to Prove Consent
• FCC Ruling 2008 9th
Circuit - Grant v. Capital Mgmt. Servs., L.P., 2011 U.S. App.
LEXIS 18366 (9th Cir. Cal. Sept. 2, 2011 – unpublished)(relying on 2008 FCC ruling
to conclude that “prior express consent” is a defense upon which defendant bears
the burden of proof); Connelly v. Hilton Grant Vacations Co., LLC, 2012 U.S. Dist.
LEXIS 81332 (S.D. Cal. June 11, 2012)(whether plaintiff gave the required prior
express consent is a defense to be raised and proved by a TCPA defendant); Mais
v. Gulf Coast Collection Bureau, 2013 U.S. Dist. LEXIS 65603 (D. Fla. 2013)

27. 27
TCPA & the FDCPA – Revoking Prior Express
Consent
• Revocation of Consent- Writing Required Where FDCPA Applies
– Some courts hold revocation of consent in debt collection by consumer is
governed by the FDCPA, not the TCPA, and must be in writing because it is a
“cease & desist” request per 1692c(c). Starkey v. Firstsource Advantage, 2010
WL 2541756 (W.D.N.Y. Mar. 11, 2010); Cunningham v. Credit Management, L.P.,
2010 WL 3791104 (N.D. Tex. Aug. 30, 2010) Moore v. Firstsource Advantage,
LLC, 2011 U.S. Dist. LEXIS 104517 (W.D.N.Y. Sept. 15, 2011); Moltz v.
Firstsource Advantage, LLC, 2011 U.S. Dist. LEXIS 85196 (W.D.N.Y. Aug. 1,
2011)
• Revocation – Oral Ok - No Writing Required Even When FDCPA applies.
– Other courts say oral revocation is ok and no writing required. Gutierrez v.
Barclays Group, 2011 WL 579238 (S.D. Cal. Feb. 9, 2011) (holding Starkey does
not address whether a called party may orally revoke its prior express consent to
receive certain automated calls); See Adamcik v. CCS, 2011 U.S. Dist. LEXIS
150107 (W.D. Tex 2011) (holding TCPA and FDCPA are two separate statutes;
because TCPA silent on how consent can be revoked, oral revocation is effective).

28. 28
TCPA & the FDCPA – Revoking Prior Express
Consent
• Timing of Revocation – Revocation at Time Application Executed
– Letter by debtor to creditor does not revoke prior express consent to call cell phone
because revocation must be made at time person "knowingly release[s]" her
telephone number. Gager v. Dell Fin. Servs., LLC, 2012 U.S. Dist. LEXIS 73752
(M.D. Pa. May 29, 2012) (hearing on appeal held on 5/13/13 ).
• Court held that FCC’s 1992/2008 Orders imply that the "instructions to the
contrary" to revoke consent must be made at time person "knowingly release[s]"
her telephone number. (Id. at *15,16)
• Saunders v. NCO Fin. Sys., 2012 U.S. Dist. LEXIS 181174 (E.D.N.Y. Dec. 19,
2012) (following Gager and stating when consumer opens an account he cannot
complain about being called at number given);
• Cardoso v. Suncoast Schs., FCU, 2012 U.S. Dist. LEXIS 173168 (M.D. Fla. Dec.
6, 2012) (acknowledging argument that a verbal revocation would be insufficient
to revoke "prior express consent" under the TCPA)
• Kenny v. Mercantile Adjustment Bureau, LLC, 2013 U.S. Dist. LEXIS 62415
(W.D.N.Y. Apr. 29, 2013)(holds under either Starkey or Gager line of cases,
consent was not revoked)

29. 29
Automatic Telephone Dialing Systems &
Predictive Dialers
Automatic Telephone Dialing System defined by 47 USC 227(a)(1):
•(a) DEFINITIONS.—As used in this section—
(1) The term “automatic telephone dialing system” means equipment which has the
capacity—
(A) to store or produce telephone numbers to be called, using a random or sequential
number generator; and
(B) to dial such numbers.
•47 CFR § 64.1200(f) (FCC Regulations) employs the same definition of ATDS as in the TCPA
•FCC Jan 2008 Declaratory Ruling - Predictive dialer is an ATDS under TCPA
• Key point per FCC – “the capacity to dial numbers without human intervention”.
(FCC 2008 Ruling, Par. 13) To find that calls to wireless numbers are permissible
when using predictive dialing software and a database of numbers, but prohibited if
operating alone would be inconsistent with purpose of the TCPA and intent of
Congress in protecting consumers (citing 2003 Order)

30. 30
Automatic Telephone Dialing Systems &
Predictive Dialers
•Under the FCC’s 2008 ruling, the ATDS definition in TCPA is
expanded. Plaintiffs will argue that predictive and other
dialers constitute an ATDS under the FCC’s 2008 Ruling.
•Note: FCC’s reason for autodialer ban, i.e., threat to public safety,
calls to emergency and healthcare facilities, shifting costs to
consumers, and dialers that tie up thousands of telephone lines in
short period of time are not relevant today.

31. 31
Automatic Telephone Dialing Systems &
Predictive Dialers
Petitions to the FCC
Group Me Petition
1)Clarify what “capacity” means in 227(a)(1)
2)That for text or calls that are informational, not telemarketing, caller should
be able to rely on intermediary representation regarding PEC.
Communication Innovators Petition
1)Clarify whether predictive dialers fall under TCPA if they lack capacity to
store or generate numbers randomly or sequentially (i.e., harking back to
TCPA definition of dialers)
2)Honor Congressional intent of TCPA by distinguishing between
telemarketing and informational calls

32. 32
Automatic Telephone Dialing Systems &
Predictive Dialers: Satterfield and Meyer Decisions
— Ninth Circuit Court of Appeals - Satterfield v. Simon & Schuster, 569 F.3d. 946 (9th Cir.
2009) did not rely on the FCC’s 2008 Ruling in its interpretation of the definition of an ATDS.
The key points are:
• 9th
Circuit says no need for FCC to interpret what is an ATDS since statute (227(a)(1))
clear and unambiguous on its face. See also Moore v. Firstsource Advantage, LLC,
2011 U.S. Dist. LEXIS 104517, 24-25 (W.D.N.Y. Sept. 15, 2011)(Satterfield merely
reinforced definition of ATDS.)
• A text message to a cell phone is a “call” under 47 U.S.C. § 227(b)(1)(A).
• “Call” defined– To communicate with or try to get in communication with a person by
telephone
- But see 9th
Circuit Meyer Decision- 2012 - Whether Defendant used an ATDS –Meyer
Court cites Satterfield for definition of an ATDS, but then cites FCC’s 2008 Ruling re:
predictive dialer is an “ATDS”: “[Defendant] PRA's predictive dialers fall squarely within the
FCC's definition of ‘automatic telephone dialing system.’” – [Note: Court held Defendant
WAIVED Dialer argument.]
-

33. 33
ATDS – Does Dialing in “Preview Mode”
Circumvent ATDS Definition
• Generally, in preview dialing mode, collection accounts and
numbers to be called are sent to a live collector by the dialer or by
the collection software before the number is dialed by the dialer.
• Live collector has option to place a call to the telephone number. To
place a call, the collector instructs dialer by a command and the
dialer makes the call.
• Does dialing in preview mode violate the TCPA? - Under Satterfield
and the TCPA’s ATDS definition, if the dialer does not have the
“capacity” to store or produce numbers to be called via a random or
sequential number generator program, this may not trigger TCPA
liability. “Capacity” is key. Griffith v. Consumer Portfolio Serv., 2011
U.S. Dist. LEXIS 91231 (N.D. Ill. Aug. 16, 2011).

34. 34
• FCC Impact on Preview Dialing - FCC’s 2008 Ruling regarding
dialers includes predictive dialers and devices with “the capacity to
dial numbers without human intervention”. Caveat: If preview dialer
is also a “predictive dialer,” FCC says dialer is an ATDS under the
TCPA.
• Caveat: the central issue would be whether the dialer being used in
preview mode still has the capacity to dial without human
intervention. If the dialer at issue is configured such that it cannot
place calls without the human element (i.e., automated software
extracted), an argument could be made that the dialer does not have
the “capacity” to dial without human intervention.
• Distinguish 2003 and 2008 FCC Rulings and purpose of autodialer
ban.
FCC Impact on Preview Dialing

35. 35
Automatic Telephone Dialing Systems &
Predictive Dialers
• In Nelson v. Santander, Case No. 11-cv-307, (W.D. Wis. March 8, 2013),
court held that routing the “preview dialed” calls through the dialer
constituted using an ATDS.
• Crux – Calls were routed through a device that had the “capacity” to be
used as an ATDS, regardless of how they were dialed.
• The Court held that the FCC’s “expansive interpretation” of the term ATDS
included predictive dialers. A predictive dialer also included equipment that
when paired with certain software could dial numbers “from a database of
numbers.” (Id. at 15.)
• The fact that collector clicked to dial a number was a “red herring”. Question
is not how the defendant made a particular call, but whether the system it
used had the “capacity” to make automated calls.
Preview Dialing – Nelson v. Santander
Decision

36. 36
Automatic Telephone Dialing Systems &
Predictive Dialers
•Court noted: Defendant’s employees never called plaintiff by
pressing numbers on a keypad. [Questionable whether this would
make difference under Ct. ruling]
•FCC Ruling as to predictive dialers is binding on Court because
Hobbs Act in 7th Circuit prevents District Court review of final
FCC orders.
But See Dobbin v. Wells Fargo Auto Fin., Inc., 2011 U.S. Dist.
LEXIS 63856 (N.D. Ill. June 14, 2011). Where call is manually
dialed, even if phone is attached to an ATDS, no TCPA liability
because not “using” an ATDS.
Preview Dialing – Nelson v. Santander Decision

37. 37
TCPA – Standing - Calls to Cell Phones
• TCPA Standing For Call To Cell Phone and Wrong Number Calls
– Cellco P'ship v. Dealers Warranty, LLC, 2010 WL 3946713, No. 09-1814 FLW (D.N.J. Oct. 5, 2010).
Defendant placed unsolicited telemarketing calls to plaintiffs’ subscribers, not to plaintiff. Court followed
Leyse and held only “intended recipient of the call” has standing to assert TCPA claims based on calls
to cell phone.
– IMPORTANT - Soppet v. Enhanced Recovery Co., LLC, 2012 U.S. App. LEXIS 9560 (7th Cir. Ill. May
11, 2012)
• collector attempted to collect debt from customer at cell number at which customer had agreed to
receive phone calls, but number had been reassigned to new consumer (plaintiff Soppet)
• Seventh Circuit rejected argument that consent remained with the phone number after it was
reassigned and rejected “intended recipient” theory
• Holding: “We conclude that ‘called party’ in §227(b)(1) means the person subscribing to the called
number at the time the call is made.”
– See also Gutierrez v. Barclays Group, 2011 WL 579238 (S.D. Cal. Feb. 9, 2011) (rejects Leyse and
holds “it is the [cell phone] ‘subscriber’ who has standing to sue for violations of the TCPA”.) D.G. ex
rel. Tang v. William W. Siegel & Associates, 2011 WL 2356390 (N.D. Ill. June 14, 2011) (unintended
recipient of call has standing under § 227(b)(3) because “a person” may bring suit under the TCPA - not
limited to “called party”.)

38. 38
TCPA – Standing - Calls to Cell Phones
• IMPORTANT - Breslow v. Wells Fargo Bank, 11-CV-22681, 857 F.Supp.2d 1316 (S.D. Fla.
2012)
– Actual recipient of call is “called party” for purposes of standing to sue under TCPA.
– Callers bear burden of verifying the accuracy of their phone numbers.
– Case is on appeal to Eleventh Circuit.
• IMPORTANT - In Agne v. Papa John's Intern., Inc., --- F.R.D. ----, 2012 WL 5473719
(W.D.Wash. 2012), Wa.)
– Certifies TCPA Text-Message Advertising Class; Finds Statutory Standing for
"Unintended Recipients" Under TCPA'
– See FCC Rulings –refer to residential and cell phone “subscriber”
• Manno v. Healthcare Revenue Recovery Group, LLC, 2013 U.S. Dist. LEXIS 52620 (S.D. Fla.
Mar. 26, 2013)(granting class certification) “[A] plaintiff's status as the ‘called party’ depends
. . . on whether the plaintiff is the regular user of the phone and whether the defendant was
trying to reach him or her by calling that phone.” Manno qualifies as the "called party" under
this interpretation.

39. 39
TCPA – Liability of Officers and Employees
– In the context of the TCPA, "an officer may be personally liable under the TCPA if he had direct,
personal participation in or personally authorized the conduct found to have violate the statute.
– “Individuals who directly . . . violate the TCPA should not escape liability solely because they are
corporate officers." Texas v. American Blast Fax, Inc., 164 F. Supp. 2d 892, 898 (W.D. Tex. 2001);
See Covington & Burling v. Int'l Marketing & Research, Inc., 2003 D.C. Super. LEXIS 29, 2003 WL
21384825, at *6-7 (D.C. Super. 2003).
– The extent of “direct participation” is key. An officer or agent of corporation is not liable for torts of
others merely because of his office. See, e.g., Norwest Capital Management & Trust Co. v. United
States, 828 F.2d 1330, 1344 n. 11 (8th Cir. S.D. 1987). See, e.g., Monsanto Co. v. Hill, 2004 U.S.
Dist. LEXIS 30107 (E.D. Mo. May 21, 2004)
– See also Brennan v. Nat'l Action Fin. Servs., 2012 U.S. Dist. LEXIS 127397 ( E.D. Mich. Sept. 7,
2012)(granting motion to amend to name corporate officers as TCPA defendants)
– Mais v. Gulf Coast Collection Bureau, Inc., 2013 U.S. Dist. LEXIS 65603, 47-48 (S.D. Fla. May 8,
2013)(denying vicarious liability on summary judgment)
• TCPA provides for "on behalf of" liability only in section 227(c)(5), not in section 227(b)
(1)(A), the provision relevant here. FCC vicarious liability ruling NOT entitled to
deference by Court.
• Also held that because “the undisputed evidence” showed the defendant was an independent
contractor, no vicarious liability under the TCPA

40. 40
TCPA – Liability of Officers and Employees –
FCC April 17, 2013 Ruling
– The FCC stated “[W]e clarify that, while a seller does not generally initiate calls
made through a third-party telemarketer, it nonetheless may be vicariously
liable under federal common law agency-related principles for violations of
either section 227(b) or 227(c) committed by telemarketers that initiate calls to
market its products or services.” (Para. 48 of ruling)
– This may support an argument that for 227(b) claims relating to a creditor and
third party debt-collector, there may be vicarious liability even if not in TCPA.
(See Mais)
– See Applestein v. Fairfield Resorts, Inc., 2009 Md. App. LEXIS 164 (Md. Ct.
Spec. App. July 8, 2009)(vicarious liability for TCPA claims for calls for
residences based on “degree of control of principal” over agent/independent
contractor); Charvat v. EchoStar Satellite, LLC, 676 F. Supp. 2d 668 (S.D.
Ohio 2009) (no liability for TCPA calls to residences because plaintiff can’t
show defendant had “sufficient control” over calling party).

41. 41
FCC Implementation Deadlines – New FCC
Telemarketing Rules
New FCC October 16, 2013 Rules for Telemarketers
•Prior Express Written Consent required for Predictive Dialer or
Prerecorded Sales/Telemarketing message Calls to Cell Phones -
October 16, 2013
•Prior Express Written Consent for Prerecorded Sales/Telemarketing
Calls to Residential Numbers - October 16, 2013 (EBR eliminated)
Note: FCC maintains former prior express consent standard for non-
solicitation calls to cell phones initiated by an ATDS, i.e., oral or written
consent sufficient.

42. 42
FCC New Express Written Consent
What Constitutes Express Written Consent
•Written agreement
•Signature of person to be called
•Clearly authorizes seller to deliver advertisements or
telemarketing messages using automated telephone
dialing system or artificial or prerecorded voice
•Telephone number to be called

43. What Constitutes
Express Written Consent?
Must have clear and conspicuous disclosures
• Seller may deliver or cause to be delivered to the
signatory telemarketing calls using an automatic
telephone dialing system or an artificial or prerecorded
voice; and
• The person is not required to sign the agreement (directly
or indirectly), or agree to enter into such an agreement as
a condition of purchasing any property, goods, or services.

44. 44
Compliance Issues
• Use cell phone ID technology to identify cell phone numbers and ported
numbers (See FCC warnings).
• Seek specific representations from creditor clients on whether client had prior
express consent to call consumer using dialer.
• Have creditor clients include broad prior express consent language in
consumer contracts that provide consent to call using an automatic telephone
dialing system or a pre-recorded voice. (Caution – express consent contained
in terms/conditions that consumer is not aware of may not be binding. See
Roberts v. Paypal, Inc., 2013 U.S. Dist. LEXIS 76319 (N.D. Cal. May 30, 2013)
• Collectors who “capture” telephone numbers on inbound calls should have
their software immediately alert the collector to obtain proper consent.
• Do not capture inbound numbers and load them into your dialer.
• When in doubt, manually dial calls unless or until PEC is obtained.

45. 45
Compliance Issues
• Careful regarding “preview/power” dialing. May not be constitute
“human intervention” due to dialer “capacity” issue. See Nelson v.
Santander and FCC 2008 Ruling.
• Train collectors to seek proper consent to call numbers associated
with account.
• Document proper consent in software, identify phone fields for cell
numbers when PEC obtained! (could help avoid class cert.)
• Be able to distinguish between numbers received from client vs. your
own skip tracing efforts. DANGER – skip tracing.
• Discard random or sequential number generator programs in dialers.
• Examine securities filings, website, response to RFP - delete any
references to “dialers”, predictive, auto-dialers, ATDS, etc.

46. David Kaminski, Esq.
Partner
Carlson & Messer LLP
(310) 242-2204
kaminskid@cmtlaw.com
Questions?
Ryan Thurman
Director of Sales & Marketing
866-362-5478 ext. 116
Ryan@dnc.com
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