A debt collector is calling my cell phone using an auto-dialer, what can I do?

16 January 2010

You might have grounds to sue them! It depends on whether you gave the original creditor or the debt collector “prior express consent” to call you on your cell phone. You may want to ask yourself, did you write the cell phone number on your original credit application? (Did you have the cell phone number when you applied for the account?) If the answer is yes, then you may not have a claim, but often debt collectors do research and gather information about you, including your cell phone number, prior to initiating their calls. So, the fact they have your cell phone number may not mean that you gave it to them voluntarily. If they are calling you using an auto dialer without your prior express consent, it is generally illegal.

What is an auto-dialer call? It is a call that is computer generated, that, upon answering, the automated voice engages you until a real human being is available. It may ask you to wait “for an important message.” These are the kind of calls many people simply hang up on once they realize a real person is not on the other line.

The law providing this protection is not found in the Fair Debt Collection Practices Act (FDCPA) (15 USC 1692 et seq.), the Act containing most debt collection law that applies to debt collectors. But interestingly enough under a law that was passed in 1991 aimed towards the telemarketing industry titled the Telephone Consumer Protection Act (TCPA) (47 U.S.C. § 227). The penalties are either the actual monetary loss caused by the violation or $500, whichever is greater, per call. (In all likelihood this will be the $500.00.) A court may also award up to three times this initial penalty (again probably $1,500.00 maximum) in its discretion, if it finds that the defendant acted willfully or knowingly.

If you think you have a claim and are considering taking action, you should contact an attorney that practices consumer protection law.

Contact: George E. Bourguignon, Jr.
(413) 746-8008
[email protected]
www.bourguignonlaw.com