By coupling the “one free pass” rule allowed by the Federal Communications Commission in attempting to contact an individual via his or her mobile phone with an opt-in request to receive further text messages, Solutions By Text is “able to minimize your exposure to TCPA liability,” according to a newly released compliance alert authored by Rick Perr, a partner at the law firm of Fineman Krekstein & Harris.
A copy of the compliance alert can be accessed here.
The ARM industry has pushed to adopt communication channels, such as text messaging and emails, but has been hesitant to fully embrace those methods of contacting individuals because there is no law or regulation that spells out how those methods can be used. There is nothing in the Fair Debt Collection Practices Act, the Telephone Consumer Protection Act, or the Fair Credit Reporting Act which specifically bans sending text messages or emails to individuals, but there is also nothing that spells out how those channels can be used.
In analyzing both the TCPA as well as a Declaratory Ruling issued in July 2015 by the FCC, Perr’s alert has provided a framework for collection agencies that wish to use text messaging as a means of contacting individuals with unpaid debts.
“Utilizing the protections afforded by the ‘one-free-pass’ rule, Solutions By Text, in conjunction with previously demonstrated consent, is able to reach consumers with the modern technology that is the predominantly favored method of communication today,” Perr wrote in his alert.
Companies that want to try and communicate with individuals via text messages can send a message, inviting this individuals to opt-in to receiving text messages. If the individual opts in, consent has been provided and communication between the agency and the individual can continue, until that individual revokes consent by indicating he or she no longer “wishes to receive text messages,” Perr wrote. If the individual does not respond to the text message inviting him or her to opt-in, no further text messages are sent.
The one key element to keep in mind is that employing this method uses up the only communication attempt that a collection agency has in attempting to contact to contact an individual on his or her mobile phone. In its 2015 Declaratory Ruling, the FCC created the “one-free-pass” rule, which allows companies the chance to contact an individual via a mobile phone number for which consent was granted, but perhaps the phone number was subsequently reassigned to another individual. As long as the company can prove it did not know the number was reassigned and had a reasonable belief the individual could still be reached at that number. Solutions By Text will scrub the phone numbers prior to sending the message to try and “eliminate” the chance that the owner of the phone number is not the intended recipient of the message.
