Access to Utility Service: 11.5.6 DELETED—Prepaid Telephone Cards
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Sections 11.5.7.2.2–11.5.7.2.4, infra, summarize the Federal Communications Commission’s (FCC) efforts to regulate phone and video calls between incarcerated people and people in the free world, as well as the recent federal legislation affecting the FCC’s authority over these communications.
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The AAA Consumer Arbitration Rules require that, before the AAA will accept an arbitration filing, the company must pay the AAA $500 to review the company’s arbitration agreement to make sure it meets the AAA’s minimum due process standards for consumer arbitrations.39 If the agreement passes that requirement and the company continues to pay the $500 annual fee, then the company appears on the AAA’s list of registered arbitration agreements.
AAA arbitration fees are very different depending on whether the arbitration is conducted under its consumer or commercial arbitration rules. Under the commercial rules, each party pays a share of all fees and costs. Under the consumer rules, the business pays almost all fees and costs.
In Freeman v. Smartpay Leasing, L.L.C. the Eleventh Circuit in 2019 found that a business waived its right to enforce the arbitration agreement because it failed to pay the initial arbitration fee, which resulted in JAMS dismissing the consumer’s arbitration action.59 Therefore the consumer could bring the action in court, despite the arbitration agreement.
The forum’s rules will typically provide the arbitrator with the discretion to insure that an appropriate amount of discovery is allowed.120 Arbitrators should not unreasonably limit the number of depositions a plaintiff is allowed. Just as arbitrators will allow material witness and documentary evidence to avoid an award being vacated for failure to consider material information, they should similarly allow the use of depositions when appropriate.
Section 7 of the FAA gives arbitrators the power to issue subpoenas to compel non-parties to attend arbitration hearings.142 However this power does not necessarily permit arbitrators to issue subpoenas to non-parties to require them to attend depositions.
Any delay in providing necessary discovery may be quickly and aggressively handled by the arbitrator. Arbitration forums typically have a streamlined process to address discovery motions. JAMS Rule 17(d) states that: “The parties shall promptly notify JAMS when a dispute exists.
JAMS Rule 21 states that at “the written request of a Party, all other Parties shall produce for the Arbitration Hearing all specified witnesses in their employ, or under their control without the need of subpoena.”208 It may be helpful to provide notice to these witnesses a few weeks before the actual hearing.
Arbitration forums have embraced technology. AAA Consumer Rule 32(b), Conduct of Proceedings, states:
Arbitration hearings are more relaxed than courtroom proceedings. Some arbitrators will caution parties not to use unnecessary objections, and will allow all marked exhibits to be admitted into evidence subject to a later motion to strike, with post-hearing briefing. One treatise notes:
Defendants in arbitration, just as in civil litigation, typically argue that because the defendant will succeed on the merits, discovery is not appropriate. However courts have held it is improper for a defendant to withhold evidence under the belief it may one day succeed at or before trial,134 and the same principal should apply in arbitration.
Certain states may have laws that allow serving an offer of judgment to resolve the case while in arbitration.190
To be considered a “communication” under the FDCPA and Regulation F (effective November 30, 2021), information regarding a debt must be conveyed directly or indirectly to any person.12
The FDCPA definition of communication requires that it convey “information regarding a debt.” Regulation F (effective November 30, 2021) defines “attempt to communicate” as any act to initiate a communication or other contact “about a debt.”44 This section looks at the two standards used in these related definitions and also compares them to a third standard, “in connection with collection of a debt,” which is a key term as to the FDCPA’s coverage in numerous sections of the Act.45
Problems with proofs of claim arise because creditors frequently abuse the process. They may file claims that falsely inflate the amount due. Other creditors may file proofs of claim when no debt is owed or when collection of the debt is barred by the statute of limitations.
Whether a notice required by state or federal law is in connection with collection of a debt will depend on the nature of the notice and how closely it is linked to debt collection efforts.119 The fact that a notice is required by law does not prevent the notice from being in connection with collection of a debt, if the substance of the notice relates to collection of a debt.
Servicers hire property preservation contactors to visit homes in foreclosure to confirm that the property is occupied, leave door hangers or other notices instructing the homeowner to contact the servicer, and enter the home and perform work to secure the property.
To fall under the FDCPA definition of debt, an obligation must arise “out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes.” This definition is similar to the Truth in Lending Act (TILA) definition of “consumer”: “the money, property, or services which are the subject of the transaction are primarily for personal, family, or household purposes.”219 Of course, the TILA definition applies to “consumer” and the FDCPA definition