Section 227 was enacted in 1934. The provision covering automated calls to cell phones was added in 1991, and the statute has been amended several times since, most recently in December 2010. If Congress has failed to appreciate changes in the telecommunications business, Enhanced Recovery and the bill collectors' trade association (ACA International, which filed an amicus brief) should alert their lobbyists. Carl von Clausewitz wrote that war is the continuation of politics by other means, Vom Kriege (1832), but adjudication is not the continuation of legislation by other means.
Of course, the trade association already may have tried and failed to persuade Congress to replace "called party" with "intended recipient of the call." That substitution would expose new subscribers to unwanted calls and unjustified expense. Congress might have thought the current approach preferable, as a safeguard of persons assigned to recycled numbers, even though this protection comes at some cost to bill collectors.
Bill collectors need not abandon predictive dialers. Other options remain:
• Have a person make the first call (§ 227(b)(1) is limited to automated calls), then switch to a predictive dialer after verifying that Cell Number still is assigned to Customer.
• Use a reverse lookup to identify the current subscriber to Cell Number.
• Ask Creditor, who obtained Customer's consent, whether Customer still is associated with Cell Number—and get an indemnity from Creditor in case a mistake has been made. (Indemnity may be automatic under ¶ 10 of the 2008 TCPA Order, which states that calls placed by a third-party collector on behalf of a creditor are treated as having been made by the creditor itself.)
The third of these options is especially attractive when Creditor is a phone company—though perhaps knowing that Creditor is a telecommunications provider should itself alert Bill Collector that Cell Number no longer is assigned to Customer. If you don't pay your phone bill, the phone company cuts off service and assigns the number to someone else.