Before the 

FEDERAL COMMUNICATIONS COMMISSION 

Washington, D.C. 20554 

In the Matter of 

ACA International’s Petition For An 

Expedited Clarification And Declaratory 

Ruling 

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CG Docket No. 02-278 

VERIZON’S1

 COMMENTS IN SUPPORT OF ACA INTERNATIONAL’S PETITION 

FOR CLARIFICATION AND DECLARATORY RULING

 ACA International’s (“ACA”) petition asks the Commission to clarify that the 

Commission’s restrictions on using predictive dialers to call cell phones or similar devices, see

47 C.F.R. § 64.1200(a)(1)(iii), do not apply in the context of calls made to collect payment for 

products or services already received. Many collections calls, however, already fall within an 

existing exception to the restriction on predictive dialer calls to cell phones: the exemption for 

calls made with the “prior express consent” of the called party. Therefore, regardless of the 

Commission’s ruling on the ACA petition, the Commission should clarify the narrower issue of 

the proper application of the “prior express consent” exception. The Commission has already 

held that willingly providing a contact number to a caller constitutes prior express consent to 

receive calls from that party. The Commission should therefore confirm in this context that 

when a customer willingly gives a creditor his or her cell phone number where the customer can 

be reached regarding his or her account, the customer has provided “prior express consent” for 

 

1

 The Verizon companies participating in this filing (“Verizon”) are the regulated, wholly 

owned subsidiaries of Verizon Communications Inc. 

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the creditor’s use of that phone number. As a result, the creditor or its collections agents may 

properly use predictive dialers to call the customer regarding collections, even if the number 

provided by the customer is assigned to a cell phone. See 47 CFR § 64.1200(a)(1)(iii). 

The Commission regulates the use of autodialers and predictive dialers pursuant to the 

Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227(b)(1)(A). The TCPA 

provides that: 

It shall be unlawful for any person in the United States . . . to make any call (other 

than a call made for emergency purposes or made with the prior express consent 

of the called party) using any automatic telephone dialing system or an artificial 

or prerecorded voice, . . . to any telephone number assigned to a . . . cellular 

telephone service . . . or any service for which the called party is charged for the 

call. 

 

Id., § 227(b)(1)(A)(iii) (emphases added). The Commission subsequently adopted regulations 

that mirror the language of the TCPA in restricting the use of automatic dialers. See 47 C.F.R. 

§ 64.1200(a)(1).2

 The terms “automatic dialing systems” and “autodialers” are defined in the 

TCPA and the Commission’s regulations as equipment that can store or generate telephone 

numbers and that can dial those numbers. See 47 U.S.C. § 227(a)(1); 47 C.F.R. § 64.1200(f)(1). 

In a 2003 Order, the Commission concluded that autodialers include “predictive dialers,” which 

are dialing machines that store pre-programmed telephone numbers or receive numbers from a 

computer database, and then dial those numbers in a manner that maximizes efficiencies for call 

 

2

 Section 64.1200(a) provides, in pertinent part, that: 

(a) No person or entity may: 

(1) Initiate any telephone call (other than a call made for emergency 

purposes or made with the prior express consent of the called party) using 

an automatic telephone dialing system or an artificial or prerecorded 

voice, . . . 

(iii) To any telephone number assigned to a . . . cellular 

telephone service . . . . 

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centers. Predictive dialers are therefore included within the Commission’s restrictions on 

autodialers, such as the restriction on autodialer calls to cellular telephone numbers. See Rules 

and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd 

14014, ¶ 131-133 (2003). 

ACA’s petition seeks an order clarifying that the Commission’s autodialer restrictions do 

not apply to calls by and on behalf of creditors seeking to recover payments, such that creditors 

and collections agents may use predictive dialers to call collections customers on their cell 

phones. See ACA Petition, CG Docket No. 02-278, at 20-21 (filed Oct. 5, 2005). Regardless of 

whether all collections calls are exempted from the autodialer restrictions, the Commission 

should recognize that many collections calls to cell phones are directed to wireless phone 

numbers that were willingly provided by the customer as numbers where the customer can be 

reached regarding the account. 

For example, Verizon will make collections calls to a customer’s cell phone number only

if that number has been willingly given to Verizon by the customer. Verizon, like all consumer 

product or services companies, is faced with the risks associated with uncollected payments for 

services rendered. One way that Verizon manages this risk is to obtain credit information from 

each of its customers, including information about how to reach the customer. Because the 

majority of Verizon’s communications with customers about collections occurs over the phone, 

Verizon asks customers to provide one or more “can be reached” telephone numbers where 

Verizon can reach the customer to discuss the account. In many cases, customers respond by 

providing their cell phone number. In the event that the account later becomes past due, Verizon 

contacts the customer using the “can be reached” numbers provided by the customer. Verizon 

will not use any telephone number, including a cell phone number, unless it was provided 

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willingly by the customer and it is a telephone number for which the customer is the account 

holder. See Decl. ¶ 6.3

 

The Commission has already recognized that a telephone subscriber who releases his or 

her telephone number has, in effect given prior express consent to receive calls from the entity to 

which the number was released. For example, in its 1992 Order initially implementing the 

TCPA, the Commission addressed commenters’ concerns that callers might be subjected to 

liability for placing autodialed calls to individuals who provided a number at one of the 

“prohibited destinations” (including a wireless phone) as the number at which that individual 

could be reached. See Rules and Regulations Implementing the Telephone Consumer Protection 

Act of 1991, 7 FCC Rcd 8752, ¶ 29 (1992) (“1992 Order”). The Commission first noted that the 

TCPA, as well as the Commission’s regulations, permit autodialed calls if the called party 

expressly consents to their use. Id. The Commission then went on to explain that “[i]f a call is 

otherwise subject to the prohibitions of § 64.1200, persons who knowingly release their phone 

numbers have in effect given their invitation or permission to be called at the number which they 

have given, absent instructions to the contrary.” Id. (emphasis added). As a result, 

“telemarketers will not violate our rules by calling a number which was provided as one at 

which the called party wishes to be reached.” Id. At the same time, the Commission 

emphasized that a caller does not have the called party’s “prior express consent” if the called 

party’s telephone number is obtained through other means, such as a Caller ID device: “[i]f a 

caller’s number is ‘captured’ by a Caller ID or an ANI device without notice to the residential 

telephone subscriber, the caller cannot be considered to have given an invitation or permission to 

receive autodialer or prerecorded voice message calls.” Id. 

 

3

 Declaration of Marcia T. Johnston (“Decl.”), attached hereto as Attachment A. 

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Although the Commission’s 1992 Order focused specifically on “telemarketers” that call 

“a number which was provided as one at which the called party wishes to be reached,” id. ¶ 31, 

the autodialer restrictions in the TCPA and the Commission’s rules apply to any “person” 

placing a call using an autodialer. See 47 U.S.C. § 227(b)(1)(A); 47 C.F.R. § 64.1200(a)(1). The 

same interpretation of “prior express consent” should apply to any caller, whether the caller is a 

telemarketer or a creditor. Indeed, the evidence of consent is even stronger in the collections 

context, where the caller and the called party have a preexisting relationship based on the 

transaction that gave rise to the debt. 

The Commission should therefore confirm that its prior statements explaining the prior 

express consent exception do not apply only to telemarketers. Rather, when a customer has 

willingly provided his or her cell phone number to a creditor, the customer has given prior 

express consent within the meaning of the autodialer rules. As such, the creditor or its collection 

agents may permissibly use a predictive dialer to call that wireless phone number to contact the 

customer. Predictive dialers are a valuable tool in the collections process because they can be 

programmed to call the particular customers with outstanding amounts due, making efficient use 

of collections callers’ time and reducing labor costs, which in turn reduces costs to consumers. 

See Decl. ¶ 5. The Commission should confirm that willingly giving a creditor one’s cell phone 

number as a “can be reached” number constitutes “prior express consent” for the creditor’s use 

of that phone number within the meaning of the Commission’s predictive dialer rules. See 47 

U.S.C. § 227(b)(1)(A); 47 C.F.R. § 64.1200(a)(1). At the same time, the Commission should 

confirm that if a creditor or its collection agents obtain a customer’s cell phone number through 

other means, such as Caller ID equipment or a wireless directory service, the customer has not 

provided consent to receive cell phone calls. See 1992 Order ¶ 31. 

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These clarifications proposed by Verizon would not implicate the concerns raised by 

opponents of ACA’s petition. For example, some commenters have asserted that companies can 

obtain cell phone numbers through wireless directories or other businesses, and thus will be 

permitted to use autodialers to call customers who have not willingly provided their cell phone 

number.4

 Commenters have also raised concerns about autodialer calls to the customers’ 

employers, friends, and family.5

 However, the limited order proposed by Verizon would clarify 

only that customers that provide their cell phone number as a “can be reached” number have 

provided their prior express consent within the meaning of the autodialer rules. As the 

Commission recognized in its 1992 Order, if the caller obtains the called party’s phone number 

from sources other than the called party, the customer “cannot be considered to have given an 

invitation or permission to receive autodialer or prerecorded voice message calls,” and the “prior 

express consent” exception would not apply. 1992 Order ¶ 31. This reasoning would continue 

to prohibit predictive dialer calls to third parties, such as employers, friends, and family 

members, who have not willingly given their cell phone number to the creditor and thus have not 

“given [an] invitation or permission” to receive autodialer calls. See id. 

Other commenters have raised concerns about harassing telephone tactics allegedly used 

by some collection agencies, such as false claims of debt and abusive language.6

 The 

Commission’s autodialer restriction, however, does not address this conduct. Abusive 

collections calling tactics are, and would continue to be, actionable under other state and federal 

 

4

 See, e.g., Comments of Joe Shields, CG Docket No. 02-278, at 7 (filed Apr. 24, 2006). 

5

 See, e.g., Comments of Walter C. Oney, Jr., CG Docket No. 02-278, at 5 (filed Apr. 21, 

2006). 

6

 See, e.g., Comment of the National Consumer Law Center, CG Docket No. 02-278, at 1-2 

(filed Apr. 13, 2006). 

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laws that address harassing or threatening telephone calls and debt collection activities. See, e.g., 

15 U.S.C. § 1692 et seq. (Fair Debt Collection Practices Act). The ruling proposed by Verizon 

would merely confirm that the act of using a predictive dialer to call a cell phone would not, in 

itself, be prohibited, as long as the customer had indicated his or her consent to receive calls by 

giving the creditor the cell phone number. 

CONCLUSION

For the foregoing reasons, the Commission should confirm that willingly giving any 

caller – including a creditor – one’s cell phone number as a “can be reached” number constitutes 

“prior express consent” for the caller’s use of that phone number within the meaning of the 

Commission’s predictive dialer rules. 

Respectfully submitted, 

 _________/S/________________ 

Michael E. Glover Edward Shakin 

Of Counsel Amy P. Rosenthal 

 1515 N. Court House Road 

 Suite 500 

 Arlington, VA 22201-2909 

 703.351.3175 

 Counsel for Verizon 

Date: May 11, 2006 

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DECLARATION OF MARCIA T. JOHNSTON

1. My name is Marcia Johnston. I submit this Declaration in support ofVerizon's

comments in response to ACA International's petition for clarification and declaratory ruling.

My business address is 1717 Arch Street, Philadelphia, Pennsylvania. I have been employed by

Verizon and its predecessor companies for approximately 26 years. I currently serve as a

Director in Verizon's Receivables Management organization. In that capacity, I am responsible

for credit and collection strategy development, implementation and analysis for Business and

Residential customer segments. This includes front end credit screening for new customer

acquisitions, targeting/treatment and collection of current customers with past due accounts, and

recovery offinal bills. Prior to my current assignment, I have held various financial, operations,

product line management, regulatory and business development positions at Verizon.

2. The primary activity ofVerizon's Receivables Management group is attempting

to recover payments on overdue bills. Verizon, like all consumer product or services companies,

is faced with the risks associated with uncollected payments for services rendered.

3. One way that Verizon manages this risk is to obtain credit information from each

ofits customers, including information about how to reach the customer. Because the majority

ofVerizon's communications with customers about collections occurs over the phone, Verizon

asks customers to provide one or more telephone numbers where Verizon can reach the customer

to discuss the account. For example, when a new customer contacts Verizon to set up a new

account, Verizon asks whether there is another telephone number where Verizon may reach the

customer regarding his or her account. Frequently, the customer responds by providing his or

her cell phone number. Verizon records the telephone number or numbers provided, the type of

telephone number provided (such as cell phone or work number), and whether the customer is

1

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the person responsible for the number. Ifthe customer is the person responsible for the number,

Verizon refers to the number as a "can be reached" number. Any other numbers provided by the

customer, such as a work number or a neighbor's number, are referred to as "alternate" numbers.

As a result, in many cases, the only "can be reached" number for a particular customer will be

his or her cell phone number.

4. Customer-provided "can be reached" numbers are an important tool in Verizon's

collections efforts. In the event that the customer's account later becomes past due, Verizon or

its collection agents will contact the customer using his or her "can be reached" numbers. Many

collections customers no longer have landline telephone service with Verizon and Verizon can

no longer reach the customer using his or her Verizon telephone number. A "can be reached"

number may therefore be the only way that Verizon can contact the customer.

5. Predictive dialers are also an important tool in Verizon's collections efforts,

because they can be programmed to dial the particular "can be reached" numbers of customers

with outstanding amounts due. Using predictive dialers reduces Verizon's collections costs, by

making efficient use of collections callers' time and reducing labor costs, which in tum reduces

costs to consumers. Predictive dialers can also assist Verizon in complying with other calling

rules, such as by automatically limiting calls to permissible calling hours for each area code and

by eliminating dialing errors.

6. For these reasons, Verizon uses predictive dialers to make collections calls when

permitted by the Commission's rules. Neither Verizon nor its collection agents will use a

predictive dialer to call any telephone number unless it was provided willingly by the customer

and the customer is the person responsible for the number.

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I declare under penalty ofpeIjury under the laws ofthe United States ofAmerica that the

foregoing is true and correct.

May 1,2006

//AllI~~. ')/1'-1ALvA-tktJ

Marcia T. Johnston

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