Recent case of interest regarding violations of the Telephone Consumer Protection Act.
A recent United States District Court opinion reminds creditors and collection agencies not to get cute with the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et. seq. See, Levy v. Receivables Performance Management, LLC, –F.Supp.2d–, 2013 WL 5310166 (E.D. New York. Sept. 23, 2013).
In this case, Plaintiff Omer Levy brings an action against Defendant Receivables Performance Management, LLC (“RPM”) for violations of the TCPA among other claims. Plaintiff incurred a debt related to an Ameritech Gold MasterCard that he opened with a company called Household Finance. Household Finance then sold the right to collect the debt to Main Street Acquisitions, who hired RPM as a debt collector. Plaintiff claims RPM placed calls to Plaintiff’s cell phone via an automatic telephone dialing system without Plaintiff’s prior express consent, in violation of the TCPA. RPM alleges that Plaintiff provided his former cell phone number on his initial credit application, as well as his initiation of phone calls to RPM from his cell phone, which constitutes prior express consent, thereby exempting RPM from any TCPA liability.
It’s uncontroverted between the parties that RPM Called Plaintiff’s cell phone via an automatic telephone dialing system. The plain language of the TCPA states that in order to avoid liability for using the automatic telephone dialing system to call the cell phone, there must have been an emergency situation or Plaintiff must have provided prior express consent to be so contacted. This second exception to the TCPA is at issue in the immediate case. The FCC and various federal courts have deemed a debtor’s provision of his or her cell phone number to a creditor or a debt collection agency during the lifespan of the debt to constitute prior express consent under the TCPA. Usually, such situations are when the debtor lists his or her cell phone number on an initial credit application or directly informs his or her creditor or debt collection agency that he or she could be contacted at a specific cell phone number in regards to a debt. It is worth noting that the FCC regulations implementing the TCPA exempt certain types of autodialed debt collection calls, such as to those with whom the caller has an established business relationship. However, this exemption applies only to landlines and does not apply to the immediate case.
It is alleged that Plaintiff did provide a cell phone number in the original credit application. However, that particular cell phone number was no longer operational and the number at issue in this matter is a different number entirely. Plaintiff did not have an alternate landline. RPM obtained the current cell phone number from a third party, Trans Union, with allegedly no indication that it was in fact a cell phone number. However, RPM purportedly conducted no research regarding the phone number provided by Trans Union. RPM alleged that it was under the impression that it received only home phone numbers from Trans Union. RPM never received any written communications from Plaintiff authorizing RPM to call Plaintiff’s cell phone number with its automatic telephone dialing system, nor did it receive any written instruction not to call the cell phone number.
The Court ultimately decided that no rational jury could find as a matter of law that Plaintiff rendered the type of prior express consent contemplated by the TCPA and summary judgment is warranted in favor of Plaintiff’s claim. Despite the fact that Plaintiff previously listed a cell phone number on his application for credit, RPM thought it procured a landline, and that Plaintiff had no other phone number, RPM was liable for violation of the TCPA.
In summary, this decision reiterates that the courts are not apt to allow debt collectors to play loose with the interpretation of the TCPA. If a creditor or collection agency feels the need to use an automatic telephone dialing system, then appropriate research must be undertaken to determine the type of phone number being dialed and if the number is associated with a cell phone, the form of consent, if any, that is associated with that telephone number.
No information in this article is intended to constitute legal advice. For specific legal advice, please contact an attorney.
If you have any questions or would like more information about the Telephone Consumer Protection Act, please contact Eric Mettenbrink at 713.220.9141 or emettenbrink@hirschwest.com.