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Second Circuit Issues Important TCPA Update

Running a contact center can be a massive responsibility. It’s a never-ending job trying to keep customers happy, agents on track and budgets under control. There isn’t always an adequate amount of time to devote to the really important things, like strategic planning for outbound communications.

When you rush around and complete tasks haphazardly to beat the clock, or perform guesswork in the contact center, you are bound to overlook small details like Telephone Consumer Protection Act (TCPA) protocol — a law that restricts how marketing, customer service and sales teams are allowed to contact customers.

TCPA regulations, it should be noted, are extremely complex. They also change from time to time, which can make them even harder to understand.

One issue that came up recently regarding the TCPA is that of “revocation of consent,” which was brought to the forefront during the Reyes, Jr. v. Lincoln Automotive Financial Services case.

As insideARM explained, in this case the plaintiff leased a car in 2012 and expressed consent to receive telephone calls from a credit agency, “including but not limited to, contact by manual calling methods prerecorded or artificial voice messages, text messages, emails, and/or automatic telephone dialing systems.”

What’s more, the plaintiff consented to the company using “any telephone number” that he provided to contact him.” This included a number for a mobile phone or wireless device, regardless of whether charges accrued.

The plaintiff, however, missed multiple payments and defaulted on his contract. So, the credit agency began calling the plaintiff at the number he provided until the vehicle was ultimately repossessed.

Now, here’s where it gets tricky:

Sources indicate that the following year, the plaintiff mailed a letter to his car manufacturer stating the following:

“I would also like to request in writing that no telephone contact be made by your office to my cell phone.”

As the story goes, the car manufacturer declined receiving any such notification, and so continued calling him. The plaintiff’s lawyer claims that 141 calls were made by a customer service representative, and 389 calls were delivered using a recorded message.

In 2015, the customer filed a lawsuit for $720,000, arguing that the company violated not just the TCPA, but also the Fair Debt Collection Practices Act (FDCPA).

The case first went to district court, and wound up before a Second Circuit which held that the plaintiff did revoke consent. However, the TCPA does not allow for a consumer to revoke consent when the consent is part of a bargained-for exchange.

What’s interesting here is that before this became a TCPA ruling, it was nothing more than a backend communication issue. Someone in the contact center repeatedly authorized agents to communicate with the customer. We can chalk this up as a bad decision.

It’s worth imagining yourself in this situation, and wondering how you would handle it. Without expert customer service guidance, and immediate access to legal counselors who thoroughly understand customer service laws, it’s easy to make the wrong decision that could result in years of court battles and massive fines.

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