The power of Washington spin: debt collectors declare victory where none can be found!

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In Washington, D.C., the spin machine is always working.  As a result, on some sides of advocacy issues and public policy debates, one’s relationship with the truth can be a tenuous, easily misplaced or overlooked thing on the way to achieving policy goals.  To be successful in this line of work, an advocate has to master the skill of developing relevant and salient messaging that mobilize and energize one’s constituency, aka “spin doctoring;” while also learning to read through punchy headlines and hyperbole to determine truth from fiction. 

Staying true to a business model which relies heavily on mistruths and undignified pursuits to collect on consumer debts and exemplifying how ‘spin’ can sometimes bear no resemblance to the truth, recently the debt collection industry declared victory on an FCC ruling that was clearly a win for consumers.  Spin doctoring aside, there was no victory for the debt collection industry.  The truth of the matter is that the same rules still apply to debt collectors. In order for any business to robo call a consumer cell phone, the consumer must provide prior express consent to receive that call.  Eventually, when no one was looking, the debt collection industry’s representatives had to tell the truth and clarify that nothing had really changed with this ruling.  

But, this wasn’t the only time that the debt collection industry has stretched to truth to obtain a policy win. 

Last fall, on September 22, U.S. House of Representatives Members Ed. Towns, NY, and Lee Terry, NE, introduced HR 3035, the Mobile Informational Call Act of 2011.   This bill was backed by the debt collection industry and the U.S. Chamber of Commerce.  In 2010 the FCC issued a Notice of Proposed Rule Making on the Telephone Consumer Protection Act on the issue of express consent for making autodialed calls to and leaving prerecorded messages on cellular telephones.  Industry, of course, wanted to relax the requirement so that prior express consent was not needed to robocall consumer cell phones.  Consumer Advocates wanted the FCC to clarify what exactly was needed to manifest prior express consent, ideally in writing.  When the debt collection industry learned that the FCC was likely not going to weaken the prior express consent requirement and, in fact, was leaning in the direction of possibly requiring prior written express consent, the ACA (the association which represents creditors and collectors) and U.S. Chamber of Commerce launched into action and organized quickly while they thought no one was looking and tried to preempt this FCC ruling through legislation.

So, they went to Congress and sold members of Congress a story which went something like this. ‘Debt Collectors had somehow convinced members of Congress that businesses – like airlines and municipalities and even debt collectors – have problems contacting consumers to convey important information to them because no one was using landlines anymore and they needed access to consumer cell phones. This is an interesting and even laughable proposition since debt collection ranked at the top of consumer complaints once again in 2011.   

In what was a very poorly drafted piece of legislation, HR 3035 was born.  Debt collectors and the U.S. Chamber of commerce who were backing the bill, nearly pulled the wool over Members of Congress’s eyes by trying to pass off HR 3035 as a benign, technical correction and common sense amendments; AND that the only reasonable solution to their so called problem was to repeal the protections for cell phones in the TCPA by removing prior express consent, preempting all state laws and changing the definition of an autodialer so that it applied to no one.

But this bill was far from benign.  This bill if passed into law would have gutted all of the consumer protections in the TCPA.  As one consumer advocate put it, HR 3035 was a solution looking for a problem.

Thankfully, industry underestimated consumer advocates ability to respond and mobilize; and on Dec 14th, 2011 the bill was withdrawn by its sponsors.  It is important to underscore how rare of an occurrence this is, particularly when you have consumer advocates and grassroots advocates on one side and the $250 million dollar a year budget U.S. Chamber of Commerce on the other side. 

A note on the significance of this win… A few years ago when I worked in Congress, I quickly learned that although Members of Congress (MOC) will often sign onto many bills, they are loathe to take themselves off of a bill; this is because of what is involved with either withdrawing a bill or removing their co-sponsorship of a bill.  Under House Rules, to withdraw one’s co-sponsorship of a bill a MOC must enter their removal on the House floor and make a public statement about why they would like to remove their name from a bill.  Thus, MOCs will sooner let a bill fade away into the background and die rather than face public embarrassment of withdrawing a bill.

But, after a tremendous amount of organizing and pressure, this did happen.  Consumers did win big and sent the debt collectors packing. 

There are many lessons to learn from this fight.  (And, there’ll be more on that in my next blog)  As for the debt collection industry and their relationship with the truth, I hope HR 3035 and the recent FCC ruling has taught them a lesson.  For me, it emphasizes that ‘spin’ is just that.  The truth always emerges and on this issue, there was no victory for debt collectors and consumers can breathe a sigh of relief (for the moment anyhow); unless they clearly consent (So, please read the fine print in any and every agreement!) to receive a robocall, any such call made to their cell phone is a violation of the law.