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Breaking News

6 Hunstein Cases Dismissed: TransUnion Casts Significant Doubt on Viability…

Steel Rose

"the Supreme Court’s decision in TransUnion casts significant doubt on the continued viability of Hunstein," according to the Judge Gary Brown, United States District Judge for the EASTERN DISTRICT OF NEW YORK. The Memorandum and Order of the District Court also declares: "First, in TransUnion, the Supreme Court held that the...


The Bottom Line

Product Spotlight

CSS Product Spotlight

Henry Gardner

CSS, Inc., a leading provider of enterprise class accounts receivable management and financial software offers a broad portfolio of platforms & solutions. CSS enables companies to transition their legacy revenue & payment management systems to a modern, cognitive, centralized, cloud-based Financial Ecosystem®. CSS may be utilized to provide business financial...


Skip Tracing Advisor

Developing a Network of Closed Sources by Ron Brown, Skip Tr…

Ron Brown

As we begin this article it is very important that the professional tracer clearly understand what constitutes a “CLOSED SOURCE”, the value of a closed source network and the obligation due to each closed source. Definition: CLOSED SOURCE… sources of information with restricted access and information available only through mutual information...


Collection Software Roundtables

Shielding Collectors From TCPA and FDCPA Violations

Joshua Fluegel

The demands of regulators lead collection professionals to collect debt with the credo of “as little contact with the consumer as possible.” Every eliminated encounter with a consumer while the payment is still being collected is one less chance for a TCPA or FDCPA violation. For this reason many accounts...


Feature Stories

Hunstein on Rehearing – Revisiting Article III Standing in t…

Eve Cann and Jonathan Green

On April 21, 2021, the Eleventh Circuit Court of Appeals issued its decision in Richard Hunstein v. Preferred Collection and Management Services, Inc., and potentially created a new claim under the Fair Debt Collection Practices Act (FDCPA) – ruling that a debt collector's sharing of information with a vendor is a violation...


Collection Agency Advisor

The Secret to Excelling in Profit AND Performance

Gordon C. Beck III

To each their own. That’s what I keep telling myself when discussing with my competitors what their strategy is to run and operate a successful collection agency. Everyone’s outlook is different, but the same. Sure, everyone wants to be a top agency, that’s what everyone is supposed to say. But...


Legal Collection Advisor

Executive Orders Impacting Collections

Michael Starzec

No, this is not a review of the 1996 thriller starring Kurt Russell, Halle Berry and Steven Seagal but it does focus on the prestige of the word “Executive.”   At hotels and sports arenas, you want the executive suite. In Illinois, at least a 1,000 corporations integrate “executive” into their...


Collection Industry Advisor

3 Options to Offer During Tax Season

Nick Jarman

When it comes to collecting debt, tax season is without argument the most profitable season of the year. Tax season starts at the beginning of February and wraps up in early May. February generally sees the highest return and slightly tapers off each month thereafter. One issue that can ease...


Compliance Advisor

PCI Compliance, SOC, and HITRUST

Debra J. Ciskey

With the June, 2019, disclosure of a data breach at AMCA looming large in the rearview mirror, debt collectors both large and small are scrambling to verify the security of their consumer portals and their consumer information in general. With numerous vendors and auditors serving the industry in this key...


TCPA Update: Financial Industry Keeps Up the Pace in Challenging FCC, Alleged Violations

  • Written by Dylan Howard

howard dylanThe most important ruling by a court on the TCPA is one that has not quite happened yet. The D.C. Court of Appeals is currently considering ACA International's challenge to the ultra-expansive interpretation of the TCPA reached by the Federal Communications Commission in its July 10, 2015 Omnibus Declaratory Ruling and Order. Among other things, ACA International objected to the FCC's conclusion that any telephone system with the future ability to make auto-dialed calls constitutes an auto dialer, as well as its conclusion that a consumer could revoke consent to automated telephone calls by any reasonable method. The D.C. Court of Appeals is expected to issue a ruling any day now.

Financial industry players are particularly hopeful as the D.C. Court recently demonstrated its willingness to undercut the FCC in another case, Yaakov of Spring Valley, et al. v. Federal Communications Commission, et al. Therein, the Court invalidated another FCC order, which in part required opt-out notices to be included on faxes sent with the recipient's consent. The FCC argued that although the statute at issue only required opt-out notices on unsolicited faxes, it possessed plenary authority to issue regulations implementing the statute and this authority included the ability to require opt-out notices on solicited faces as well. The Court rejected this interpretation, notably finding that "good policy does not change the statute's text." The industry is hopeful that this is a classic example of foreshadowing and that the decision in the ACA case will follow similar logic.

Even if the D.C. Court of Appeals ultimately upholds the FCC's expansive 2015 Order, there is some hope that 2018 may bring a re-examination of that Order by the FCC itself. Republicans now hold a 3-2 majority on the Commission under a new Chairman, Ajit Pai, who, as a commissioner, entered a strenuous dissent to the 2015 Order.

While businesses across the country are intensely focused on these developments in the D.C. Circuit Court, courts around the country continue to press on with the yeoman's work of applying logic to the complex provisions of the TCPA. The primary issue on which the courts are focusing appears to be the consumer's right to revoke consent and the effectiveness of various revocation attempts.

Notably, in Reyes v. Lincoln Automotive Financial Services, the United States District Court for the Second Circuit concluded that a consumer could not unilaterally revoke consent where the consent was given as a bargained for term of the contract. This decision was based less on the specific TCPA statutory language and more on the common law of contracts.

Other courts have focused on attempts by various consumers to manufacture liability based on creative methods for revoking consent designed to circumvent a business's technology for identifying and implementing revocations. In two related cases, Epps v. The Gap, Inc. and Epps v. Earth Fare Inc., the United States District Court for the Central District of California found that a consumer's attempt at revoking consent was unreasonable where the consumer used needlessly complicated language in a clear attempt to create TCPA liability. The District Court of New Jersey reached the identical conclusion in a nearly identical case in Viggiano v. Kohl's Department Stores, Inc. In Viggiano, the consumer had agreed to use a single word to revoke consent like 'stop' and then used sentences-long requests which, according to the Court, made it difficult or impossible for the business to honor the borrower's request. While these and other recent decisions made 2017 an important year for the TCPA, we fully expect 2018 to be momentous.

An experienced trial lawyer in Baker Donelson’s Atlanta office, Dylan Howard has more than 13 years of experience defending banks, mortgage lenders, mortgage servicers and other financial institutions in trial and appellate cases in Georgia state and federal courts. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..