Defending Against TCPA: What is being missed by many debt collector defense attorneys…

As I continue to read the adverse TCPA rulings against debt collectors come down from judges across the country, I can’t help but wonder if some of the attorneysMan Clueless or Perplexed About Something defending these TCPA cases completely understand the TCPA itself, along with the subsequent FCC rulings over the last twenty years.  There are quite a few solid, reputable, and knowledgeable TCPA defense attorneys, but for those who are not and decide to take on TCPA cases I wonder if they fully understand the configuration and functionality of the advanced phone systems being used by debt collectors to express the inner workings of these systems in order to clearly prove to a layman the difference.

I am probably being simple minded here, but to me the exclusion of the advanced phone systems being used by debt collections should be easily justified by reading the first definition in the TCPA Section (a)(1), “automatic telephone dialing system.”  The first word “automatic” does it.  The term “automatic” is defined as having the capability of starting, operating, and moving independently without human intervention.  These advanced phone systems used by debt collectors all have one thing in common; they are not “automatic.”  Before a dialer can begin making phone calls, a human or program outside of the dialer is required to determine the phone numbers that are to be loaded into that system before it can begin to make calls.  Without the human or external program involvement the system will not run, therefore the word “automatic” doesn’t apply.

Moving into Section (a)(1)(A) “to store or produce telephone numbers to be called, using a random or sequential number generator.”  Most of the advanced telephone systems being used by debt collectors have the ability to “store” telephone numbers.  However, these advanced telephone systems do not have the ability to “produce” telephone numbers.  Produce is defined as bringing into existence, to make or manufacture, to provide or furnish.  The advanced telephone systems used by debt collectors must have the phone numbers provided by the debt collectors, no telephone numbers are produced by an advanced telephone system.

The second part stating “using a random or sequential number generator” should be the home run exclusion to get rid of any TCPA claim brought against debt collectors.  The advanced telephone systems used by debt collectors cannot generate phone numbers by “random” and they certainly don’t have the capability to do them “sequential.”  Not only do they not have the capability, there would be no logical reason why, even if a system did have the capability to do it that a debt collector would.  Debt collectors have an Expressed Business Relationship with each consumer they are calling for and they do not randomly dial phone numbers.  The last word here is “generator” which could be defined as an originator with something responsible for generating something.  Advanced telephone systems do not “generate” anything; it is the debt collector’s collection system that “generates” the “specific, nonrandom” telephone numbers to be called.

So as I continue to be infuriated when I read these rulings by judges in which they have completely ignored and disregarded the statutory definition of an “automatic telephone dialing system.”  I do have to wonder if the attorneys representing the debt collectors in these cases have presented a solid enough case to get the case dismissed.  There is no doubt the TCPA doesn’t apply to debt collectors if one reads the actual text of the law, there is even more certainty the TCPA doesn’t apply to debt collectors as you read the FCC rulings over the last twenty years.  The only thing in doubt is why debt collectors haven’t been expressly excluded by legislators or judges that hear these cases.