MICHELE SHUSTER mshuster@mpslawyers.com February 22, 2012 To whom it may concern: Radius Solutions, Incorporated has retained the undersigned to render a legal analysis of its Radius Cell Manager program s compliance with the Telephone Consumer Protection Act (TCPA) and its implementing regulations amended by the Federal Communications Commission (FCC) on February 15, 2012. 1 Based on the facts provided by Radius Solutions as set forth in the attached opinion letter dated November 23, 2011, it was the opinion of legal counsel that the Radius Cell Manager fully complies with the TCPA for use by issuers collecting their own debt and by debt collectors as defined by the Fair Debt Collection Practices Act as of the date of the Opinion. 2 The undersigned legal counsel has reviewed that Legal Opinion in light of the amended TCPA Regulations and it is her legal opinion that the Radius Cell Manager continues to comply. Background and Applicable Law On February 15, 2012, the FCC approved a Report and Order that adopts significant amendments to the TCPA regulations. Significant to this letter, the FCC s final rule does not amend the definition of "automatic telephone dialing system" (ATDS) or the requirement to obtain "prior express consent" to place informational calls to a consumer s wireless number when utilizing an ATDS or prerecorded message. The commentary in the Report and Order makes it clear that the FCC's January 2008 declaratory ruling pertaining to what constitutes "prior express consent" in the context of debt collection calls made to wireless numbers using an ATDS remains unchanged. Analysis As discussed in the opinion provided by legal counsel in her November 23, 2011 Opinion Letter, the calls placed using Radius Cell Manager do not constitute calls made using an ATDS and, therefore, do not require prior express consent. The amendments to the TCPA do not affect this analysis, as the FCC has left unchanged the definition of ATDS and the legal requirements for calls placed when not using an ATDS. Debt collectors that choose to call wireless telephone numbers using an ATDS must still meet the requirements outlined in the TCPA. Specifically, the collector must have obtained prior express consent from the debtor to call his or her wireless telephone number, which consent must 1 The Report and Order can be found at: http://transition.fcc.gov/daily_releases/daily_business/2012/db0215/fcc-12-21a1.pdf 2 15 U.S.C. sec. 1692(a) 6530 West Campus Oval Suite 210 New Albany, Ohio 43054 Office: 614.939.9955 Fax: 614.939.9954 www.mpslawyers.com
Page 2 not have been revoked. The term prior express consent is not defined by statute or in the FCC's regulations; however, the FCC has stated that persons who knowingly release their phone number have in effect given their invitation or permission [express consent] to be called at the number which they have given, absent instructions to the contrary. 3 Further the FCC has held 4 that: With respect to debt collection calls to telephone numbers assigned to wireless numbers, the Commission concluded that the provision of a cell phone number to a creditor, e.g., as a part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt. 5 As a result, if a debt collector utilizes an ATDS, the collector must have processes and procedures in place to ensure that the debtor s wireless telephone number was provided by the debtor during the credit application process and that the consumer has not revoked consent to be called on his or her wireless telephone. Without being able to substantiate these facts, a collector would have a difficult time defending against allegations of TCPA violations. Sincerely, Michele Shuster Att. 3 1992 TCPA Order, 7 FCC Rcd at 8769, para. 31 4 See 1992 TCPA Order, 7 FCC Rcd at 8770-71, para. 34. In the 1995 TCPA Reconsideration Order 5 Rules and Regulations Implementing thetelephone Consumer Protection Act of 1991, Request of ACA International for Clarification and Declaratory Ruling, CG Docket No. 02-278, Declaratory Ruling, 23 FCC Rcd 559, 564, para. 9 (2007).
Page 3 EXHIBIT A: NOVEMBER 23, 2011 OPINION LETTER HELEN MAC MURRAY hmacmurray@mpslawyers.com November 23, 2011 To whom it may concern: Radius Solutions, Incorporated has retained the undersigned to render a legal analysis of its Radius Cell Manager program s compliance with the Telephone Consumer Protection Act (TCPA). 6 Radius Solutions sought me out to render this opinion because of my extensive work in the consumer protection field. For six years, I served as the section chief of the Ohio attorney general s consumer protection section. For the past ten years, I have been engaged in the private practice of law and have limited my practice to representing clients on federal and state consumer protection issues, including TCPA compliance. Based on these years of experience, the facts provided by Radius Solutions set forth below and for the reasons stated herein, it is the opinion of the undersigned that the Radius Cell Manager fully complies with the TCPA for use by issuers collecting their own debt and by debt collectors as defined by the Fair Debt Collection Practices Act. 7 Factual Basis Radius Solutions developed its Radius Cell Manager to assist its clients in achieving TCPA compliance and the efficient calling of cellular phone numbers. The Radius Cell Manager is both a modern telephony device and a process for the handling of cellular phone number calling through a Transfer Agent Process. The Radius Cell Manager is a device that when prompted by the Transfer Agent, calls individual phone numbers one number at a time for a live agent to answer the connected call. The Radius Cell Manager is not capable of: Predicting an agent s availability to take a call. Using multiple lines per agent to dial on. Dialing ahead of an agent finishing a current call. Storing or producing telephone numbers to be called using a random or sequential number generator. 6 47 U.S.C. sec. 227 7 15 U.S.C. sec. 1692(a)
Page 4 The Radius Cell Manager can only call one phone number on one phone line for an individual agent at a time. There is no dialing ahead of an agent. The agent s current call must complete before his line is engaged for the next call. The Radius Cell Manager uses no prerecorded messaging or synthesized voice prompts and records each call in its entirety. The technology filters out "operator intercepts, answering machines, etc." and only passes live connects to the waiting agent. No live connects go unanswered and no calls are abandoned. The Transfer Agent Process utilizes Radius Solutions agents to initiate a call, verify the right party, initiate the transfer, introduce the consumer to the client s associate and release the call. Radius Solutions client provides the cellular phone call list, establishes a call group, approves the Transfer Agent script and sets the calling schedule. Radius Solutions also provides custom solutions to accommodate its client s security and telephony requirements. Attached as Exhibit A is a flow chart outlining the Radius Cell Manager program and a narrative outlining the process in detail. Applicable Law Although other state and federal laws and regulations may apply to the Radius Cell Manager depending upon its use, the within opinion is limited to the program s use by debt collectors and its compliance with the TCPA. In pertinent part, it provides: 227. Restrictions on use of telephone equipment 8 (a) Definitions As used in this section (1) The term automatic telephone dialing system means equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers. (b) Restrictions on use of automated telephone equipment (1) Prohibitions It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States (A) 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 (iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call; 8 47 U.S.C. sec. 227
Page 5 Legal Analysis The Radius Cell Manager is Not an Automatic Telephone Dialing System The Radius Cell Manager is not an automatic telephone dialing system (ATDS) as defined by the TCPA because it does not have the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers. As such, the TCPA s prohibition on calling cellular telephones does not apply to the Radius Cell Manager. Calls Made by Radius Cell Manager are Not Telephone Solicitations The FCC has also determined that calls made by a collector with regards to an existing debt are not telemarketing calls as defined by the TCPA. Id. As such, calls made by the Radius Cell Manager are also not subject to the TCPA s separate restrictions on telephone solicitations such as the do not call requirements. Conclusion Based on the veracity of the facts as set forth above and provided to the undersigned, it is our opinion that the Radius Cell Manager complies with the TCPA for use by debt collectors. Sincerely, Helen Mac Murray Helen Mac Murray Att.
Page 6 The Radius Cell Manager is located in our Jacksonville, Florida data center. The Cell Manager is configured to deeply penetrate cell phone files while using a one to one line ratio and beginning each call with a live answer. A cell phone file requires minimal data; a name, phone and file number. The client specific Transfer Agent prompts (point and click) the Cell Manager to initial the call. The Transfer Agent determines if a Right Party Contact (RPC) has occurred following a brief script approved by the client.
Page 7 When an RPC is verified, the Transfer Agent immediately initiates a push button warm transfer of the call to the client s call group. When the client s associate answers, the Transfer Agent introduces the consumer, releases from the call and comes ready for the next call. The Cell Manager records and logs the entire call sequence from start to finish including the clients associate which can be retrieved and made available upon request. The client provided phone number is displayed on the consumer s caller ID to direct generated inbound call traffic to the client s call center as well. Radius further provides ongoing reports and files to clients identifying: bad numbers, hang ups, successful and unsuccessful transfers, etc. ing: bad numbers, hang ups, successful and unsuccessful transfers, etc.