Dialing for Dollars—What You Don’t Know about the Telemarketing Consumer Protection Act, Telemarketing Sales Rule and the Fair Debt Collection Act Could Cost Your
Clients a Fortune
Dialing for Dollars - What You Don’t Know
About the Telemarketing Consumer
Protection Act, Telemarketing Sales Rule
and the Fair Debt Collection Act Could
Cost Your Clients a Fortune
Judith M. Mercier Holland & Knight LLP 200 South Orange Avenue Suite 2000
Orlando, FL 32801 (407) 425-8500 Hans J. Germann Mayer Brown LLP 71 S. Wacker Drive Chicago, IL 60606 (312) 782-0600
I.
Debt Collection And The Telephone Consumer Protection Act
(“TCPA”)
A. Overview of the TCPA
The TCPA, 47 U.S.C. § 227, was enacted to “protect the privacy interests of residential telephone subscribers by placing certain restrictions on unsolicited, automated
telephone calls to the home and to facilitate interstate commerce by restricting certain uses of facsimile machines and automatic dialers.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). The TCPA contains a number of substantive
provisions designed to protect persons from unwanted calls or faxes, including:
(1) Section 227(c), which authorizes the Federal Communications Commission (“FCC”) to create a “do not call” list, so that residential telephone subscribers can list their numbers and avoid receiving “telephone solicitations.”
(2) Section 227(b)(1)(C), which imposes strict limitations upon sending via fax any “unsolicited advertisement.”
(3) Section 227(b)(1)(A), which prohibits making a call to a cellular telephone number “using any automatic telephone dialing system or an artificial or prerecorded voice,” without “the prior express consent of the called party” (unless made “for emergency purposes”). (4) Section 227(b)(1)(B), which prohibits initiating “any telephone call to any residential
telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party,” unless the call is for emergency purposes or exempted by the FCC.
The penalties for violating the TCPA can be severe. The statute generally provides for $500 in damages for each call made in violation of the statute (or actual monetary losses if greater than $500), which can be trebled if the court finds the violation was willful or knowing. 47 U.S.C. § 227(b)(3).
B. Application to Debt Collection
The TCPA provision most likely to come into play in the debt collection context is the prohibition on calls to cellular telephone numbers made using an “automatic telephone dialing system or an artificial or prerecorded voice,” and made without the prior express consent of the call recipient. The do-not-call list provisions and the fax restrictions of section 227(b)(1)(C) are unlikely to apply to debt collection activities because they are limited to “telephone solicitations” and “unsolicited advertisements,” respectively. The FCC has defined a “telephone solicitation” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,” unless the call is made with prior express invitation, is made to a person with whom the caller has an “established business relationship,” or is made by or on behalf of a tax-exempt non-profit organization. 47 C.F.R. § 64.1200(f). Similarly, the FCC defines an “unsolicited advertisement” as “any material advertising the commercial availability or quality of any property, goods, or services which is
transmitted to any person without that person’s prior express invitation or permission, in writing or otherwise.” Id. To the extent a telephonic communication is made solely for the purpose of collecting a pre-existing debt, such a call would not constitute a
“telephone solicitation” or “unsolicited advertisement.” See, e.g., Meadows v. Franklin Collection Service, Inc., 414 Fed. Appx. 230, 236 (11th Cir. 2011) (holding that a debt collection call is not a telephone solicitation, and rejecting the suggestion that such a call is a solicitation because it includes an implicit “purchase of peace”).
With respect to the prohibition in section 227(b)(1)(B) on calls to residential telephone lines using an artificial or prerecorded voice (unless made for emergency purposes or with prior express consent), the statute expressly gives the FCC authority to promulgate regulations providing for additional exemptions. The FCC has exercised this authority,
to exempt any call that “is not made for a commercial purpose,” that “is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing,” or that “is made by or on behalf of a tax-exempt nonprofit organization.” 47 C.F.R. § 64.1200(a)(3). These exemptions should apply to any call made solely for the purpose of collecting a pre-existing debt, because such a call, while made for commercial purposes, does not include an advertisement or constitute telemarketing. An “advertisement” is “any material advertising the commercial availability or quality of any property, goods, or services,” and “telemarketing” is “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.” 47 C.F.R. § 64.1200(f). Indeed, the FCC has squarely stated that “calls solely for the purpose of debt collection are not telephone solicitations and do not constitute telemarketing.” In the Matter of Rules and Regulations
Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, ¶ 11 (Jan. 4, 2008) (“2008 TCPA Order”).
However, section 227(b)(1)(A) of the TCPA, prohibiting calls to a cellular telephone number “using any automatic telephone dialing system or an artificial or prerecorded voice” without “the prior express consent of the called party,” contains no similar exemptions (by statute or FCC implementing regulation) that might apply to debt collection calls. This restriction on calls to cell phones applies regardless of whether a call is a solicitation or constitutes telemarketing, and thus applies to debt collection calls. As summarized below, the FCC and the courts have grappled with a number of issues relating to the application of section 227(b)(1)(A), including what constitutes “prior express consent,” whether the prohibition on these “calls” includes text messages, what constitutes an “automatic telephone dialing system,” and in what circumstances a person can be held liable for calls made by others.
C. What Is Prior Express Consent?
How is “express” consent obtained? In 2012, the FCC amended its regulations to provide that telemarketing calls to cell phones using an automatic telephone dialing system or artificial/prerecorded voice, or to residential lines using an
artificial/prerecorded voice, require “prior express written consent.” See In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 27 FCC Rcd. 1830 (Feb. 15, 2012) (“2012 TCPA Order”); 47 C.F.R. § 64.1200(a)(2), (3). The FCC defined “prior express written consent” to require a signed, written agreement that “clearly authorizes” the seller to send telemarketing messages using an automatic telephone dialing system or an artificial/prerecorded voice, with a “clear and conspicuous disclosure” that execution of the agreement constitutes such consent. 47 C.F.R. § 64.1200(f). In addition, the person cannot be required to sign the agreement as a condition of purchasing any property, goods, or services. Id.
The FCC’s new written consent rules do not, however, apply to non-telemarketing calls. In particular, the FCC did not purport to disturb its prior rulings regarding the manner in which consent may be obtained for debt collection calls. Under those prior rulings, “the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone subscriber to be contacted at that number regarding the debt.” 2008 TCPA Order, ¶ 9. The FCC “emphasize[d] that prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed.” Id. ¶ 10.
As a result, a number of courts have found that creditors and/or debt collectors acting on their behalf have prior express consent to call a debtor’s cellular number where the debtor provided that number during the transaction creating the debt, such as on an application or upon opening an account. See, e.g., Osorio v. State Farm Bank, F.S.B., 859 F. Supp. 2d 1326 (S.D. Fla. 2012) (number provided on credit card application); Cavero v. Franklin Collection Serv., Inc., 2012 WL 279448 (S.D. Fla. Jan. 31, 2012)
(number listed on an account for telephone and internet service); Mitchem v. Ill.
Collection Serv., Inc., 2012 WL 170968 (N.D. Ill. Jan. 20, 2012) (billing number provided to doctor when receiving treatment); Adamcik v. Credit Control Servs., Inc., 832 F. Supp. 2d 744, 748 (W.D. Tex. 2011) (number provided with student loan application).
Who may provide consent? One issue that frequently arises is from whom must the debt collector have obtained prior express consent? The TCPA expressly requires the consent of the “called party.” In several cases, courts have addressed disputes about who constitutes the “called party” – the individual who happens to answer the phone, the individual who subscribes to the telephone service, or the individual the caller is
attempting to reach? The resolution of this issue may impact whether a particular
individual has standing to sue for a violation (for example, where the individual answered a call on a phone paid for by another person) and/or whether the caller had valid consent to place the call.
The Seventh Circuit addressed such an issue in Soppet v. Enhanced Recovery Comp., 679 F.3d 637, 639-41 (7th Cir. 2012). There a creditor originally obtained consent to call a debtor regarding a debt, as the debtor had provided the cell number as a contact number, but, by the time of the automated calls, the debtor’s cell service had been
cancelled and the telephone number recycled and reassigned to an unrelated third party. The Court held that the debt collector did not have prior express consent to make the autodialed calls because it had not obtained the consent of the third party who owned the cell number at the time of the calls. The “called party,” the Court concluded, is the number’s “current subscriber, because only the current subscriber pays” and “[c]onsent to call a given number must come from its current subscriber.” See also Breslow v. Wells Fargo Bank, 857 F. Supp. 2d 1316, 1321-22 (S.D. Fla. 2012) (consent given by a previous holder of a number cannot be imputed to the current subscriber); Page v. Regions Bank, 2012 WL 6913593, *4 (N.D. Ala. Aug 22, 2012) (“a significant number of courts have recognized the telephone subscriber as the ‘called party’”); D.G. v.
Diversified Adjustment Service, Inc., 2011 WL 5506078, *3 (N.D. Ill. Oct. 18, 2011) (“the language and structure of the TCPA indicate that the term ‘called party’ refers to the actual recipient and not the intended recipient of a call”).
The upshot of Soppet is that consent must come from the current subscriber, and not an unrelated former subscriber. The Seventh Circuit did not expressly address, however, whether there are any circumstances under which consent from a related person might be deemed consent from the subscriber. A handful of district courts have addressed this issue, and concluded that in some circumstances family members or others can provide valid consent, such as where they have “common authority” over the phone. See, e.g., Osorio v. State Farm Bank, F.S.B., 859 F. Supp. 2d 1326, 1330 (S.D. Fla. 2012)
(consent provided by non-subscriber half of a co-habiting couple effective because “even though [they] are not legally married, they live together and continue to raise their son together” and “at a minimum had common authority over the phone”). Otherwise, “debt collectors would be held liable whenever a debtor lists a family member’s number as his own.” Id. See also Gutierrez v. Barclays Group, 2011 WL 579238 at *3 (S.D. Cal. Feb. 9, 2011) (husband can provide consent for subscriber wife, if she “possessed common authority over or other sufficient relationship to the” phone).
Such a result is arguably consistent with the FCC’s recent ruling (addressed further below) that federal common law principles of agency apply under the TCPA, including “not only formal agency, but also principles of apparent authority and ratification.” Declaratory Ruling, In the Matter of The Joint Petition Filed by DISH Network, LLC, the United States of America, and the States of California, Illinois, North Carolina, and Ohio for Declaratory Ruling Concerning the Telephone Consumer Protection Act (TCPA) Rules, FCC 13-54, ¶ 28 (May 9, 2013). While the FCC was addressing the issue of seller liability for calls placed by third parties, the same principles might arguably be applied to the issue of consent. However, there remains a risk that courts will follow and interpret Soppet strictly, and conclude that prior express consent can only come from the
particular individual who is the financially responsible subscriber on the wireless account, irrespective of whether, e.g., a family member is the customary user of the phone.
Revocation of consent. The circumstances under which prior express consent may be revoked has also arisen in a number of cases, resulting in conflicting decisions. Most recently, the Third Circuit held that the TCPA permits a consumer to revoke prior express consent. Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir. 2013). The Third Circuit relied heavily on a decision from the FCC concluding that a consumer’s prior express consent to receive text messages (which, as explained below, count as calls to cell phones) includes consent to receive a final, confirmatory text message confirming an opt-out request. The FCC’s decision did not directly analyze the issue of whether consent could be revoked at all under the TCPA, but throughout the FCC’s decision were repeated statements about “fully revoking” prior express consent, and its decision as a whole would seem to make sense only if consent could be revoked. That said, there are a handful of district court decisions outside the Third Circuit
concluding that once given, prior express consent under the TCPA cannot be revoked at all. For example, in Chavez v. The Advantage Group, 2013 WL 4011006 (D. Colo. Aug. 5, 2013), the court held that the defendant could not orally revoke her prior consent to be called (made by providing her telephone number to the creditor at the time it provided medical services) by orally telling defendant to stop calling her. The court concluded that “‘there is no provision in the TCPA . . . that allows withdrawal of a voluntarily-given, prior express consent to call a cell phone number,’” “‘[t]his is a narrow statutory right not to receive automated calls on a cellphone,’” and “‘[a] consumer that voluntarily gives it up need not have an opportunity to change his mind later; he has withdrawn from the protection of the statute.’” Id. at *3 (quoting Saunders v. NCO Financial Systems, Inc., 910 F. Supp. 2d 464, 468-69 (E.D.N.Y. 2012)). It remains to be seen whether,
particularly in light of the Third Circuit’s decision, any other courts will adopt this approach.
Even among courts holding that consent may be revoked, there remains a conflict regarding whether revocation can be oral, or must be made in writing. A handful of courts have concluded that oral revocation is insufficient. This line of cases began with Starkey v. Firstsource Advantage, LLC, 2010 WL 2541756 (W.D.N.Y. Mar. 11, 2010), which alleged violations of both the Fair Debt Collection Practices Act (“FDCPA”) and TCPA in connection with automated calls made to a debtor for the purpose of collecting a debt. The court concluded that there is nothing in the TCPA “to support plaintiff’s claim that a verbal request is sufficient to cease legitimate debt collection efforts,” and
“[a]lthough the TCPA has some application to the instant case insofar as defendant was placing prerecorded automated calls to plaintiff’s cellular telephone, Congress has clearly stated that debt collection efforts are governed by the FDCPA.” Id. at *6. “Thus, plaintiff’s attempt to infer that a verbal request to cease debt collection calls is sufficient under the TCPA . . . misses the mark,” because “[t]o cease debt collection calls [under the FDCPA], written notice is required.” Id. Other courts in the Western District of New York have subsequently followed Starkey, as well as a few courts elsewhere. See, e.g., Osorio, 859 F. Supp. 2d at 1331; Cunningham v. Credit Mgmt., L.P., 2010 WL 3791104, at *5 (N.D. Tex. Aug. 30, 2010).
Several other courts, however, have expressly found that oral revocation is sufficient. For example, in Adamcik v. Credit Control Services, Inc., 832 F. Supp. 2d 744, 749 (W.D. Tex. 2011), the court concluded that the written notice provisions of the FDCPA should not be read into the TCPA, and that “for a host of reasons under the common law and canons of statutory construction, . . . an oral revocation should be effective.” The court concluded that the line of cases holding the contrary had impermissibly construed the FDCPA to trump the TCPA (shielding a debt collector from liability under the TCPA as long as it complied with the FDCPA), when under the canons of statutory construction the courts must give effect to both. See id. at 751-52. See also Gutierrez, 2011 WL
579238 at *4 (verbal revocation of consent is sufficient under the TCPA); Beal v. Wyndham Vacation Resorts, Inc., 2013 WL 3870282, *15 (W.D. Wis. June 20, 2013) (concluding “that consumers have the right to revoke consent to receive autodialed calls under the [TCPA] and that they may do so orally or in writing. Although neither the text of the Act nor its legislative history addresses the possibility of revoking prior express consent, a traditional understanding of ‘consent’ includes the possibility of revocation.”).
D. Is A Text A Call?
In a 2003 rulemaking, the FCC noted that under the TCPA, it is generally “unlawful to make any call using an automatic telephone dialing system or an artificial or prerecorded message to any wireless telephone number,” and it stated that “[t]his encompasses both voice calls and text calls to wireless numbers including, for example, short message service (SMS) calls, provided the call is made to a telephone number assigned to such service.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, ¶ 165 (July 3, 2003) (“2003 TCPA Order”). SMS service had not even been commercially released in the U.S. when the TCPA was enacted, and the FCC did not specifically analyze the meaning of the statutory term “call” or the extent to which Congress may have intended that term to be broad enough to encompass texts. Nevertheless, the courts that have addressed the issue have deferred to the FCC’s statement, and concluded that the prohibitions on certain calls to wireless numbers includes text messages.
For example, in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009), the Ninth Circuit held that “a text message is a ‘call’ within the meaning of the TCPA.” The Court noted the FCC’s prior statements that texts constitute “calls,” and applied Chevron deference to those statements. Finding that the TCPA itself was silent on the issue, the Court concluded that the FCC’s interpretation of “call” was reasonable, pointing to a dictionary definition of “call” as “‘to communicate with or try to get into communication with a person by telephone.’” Id. at 954.
The FCC subsequently reaffirmed that “calls” to wireless numbers include texts, in its Declaratory Ruling, SoundBite Communications, Inc. Petition for Expedited Declaratory Ruling, 27 FCC Rcd. 15391 (Nov. 29, 2012) (“SoundBite Ruling”). There the FCC held that where a consumer has previously consented to receiving texts and then sends a text to opt-out of receiving future text messages, the sender does not violate the TCPA by sending a single text, within five minutes, to confirm the opt-out request. (The text cannot, however, contain any marketing messages or encourage the consumer to contact the sender in an attempt to market.)
E. What Is An Automatic Telephone Dialing System?
The TCPA defines an “automatic telephone dialing system” (“ATDS”) as “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.” 47 U.S.C. § 227(a)(1).
It is important to note that the statute says only that the equipment must have the
“capacity” to store or produce and to dial numbers using a random or sequential number generator. As a result, the Ninth Circuit has held that “[a]ccordingly, a system need not actually store, produce, or call randomly or sequentially generated telephone numbers [to constitute an ATDS], it need only have the capacity to do it.” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009). Thus, in many cases arising under the TCPA one hotly contested issue is whether the equipment used to place the calls had such “capacity,” whether or not that capacity was actually used to place calls. See, e.g., Sherman v. Yahoo! Inc., 2014 WL 369384 (S.D. Cal. Feb. 3, 2014) (denying motion for summary judgment because there was a genuine issue of material fact as to whether Yahoo!’s texting equipment had “the requisite capacity to both store numbers and dial random or sequential numbers”).
This begs the question of what “capacity” means. Most any computing device theoretically might have a “capacity,” with the right software, to store or produce
telephone numbers to be called using a random or sequential number generator, and to dial such numbers. “[G]iven the vast proliferation in recent years of smartphones with computer operating systems, many personal, non-commercial telephones could in all likelihood achieve automatic dialing capability by simply downloading an ‘app.’” Hunt v. 21st Mortgage Corp., 2014 WL 426275, *5 (N.D. Ala. Feb. 4, 2014). However, the Hunt court concluded, “[t]he TCPA surely does not mean to define every telephone as an automatic dialing system,” and thus, the court found, “a telephone system is only
covered by the statute if, at the time the calls at issue were made, the system had the capacity, without substantial modification, to store or produce numbers using a random or sequential number generator.” Id. (emphasis in original). It remains to be seen whether other courts – or the FCC – will adopt a similar approach. The issue might be resolved in the near future, as the FCC currently has pending before it petitions asking it to clarify what it means for equipment to have the requisite “capacity.” See, e.g., Petition for Rulemaking of ACA International, CG Docket No. CG 02-278 (filed Feb. 11, 2014) (asking the FCC to rule that “capacity” means “present ability”).
Of course, a ruling by the FCC may, depending upon how it is drafted, engender as much confusion as clarification, as did its ruling regarding “predictive dialers.” In its 2003 TCPA Order (¶¶ 131-133), the FCC concluded that “predictive dialers” fall within the definition of an ATDS. The FCC described a “predictive dialer” as “equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls.” Id. ¶ 131. “The hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.” Id. (emphasis added). The FCC noted that while dialing technology had developed from using machines to generate and dial numbers “arbitrarily” to using lists of numbers, “[t]he basic function of such equipment, however, has not changed – the capacity to dial numbers without human intervention.” Id. ¶ 132. The FCC found that excluding from the TCPA’s restrictions “equipment that use predictive dialing software . . . simply because it relies on a given set of numbers would lead to unintended results,” and “circumvent[]” the “prohibition on autodialed calls.” Id. ¶ 133. Similarly, in its 2008 TCPA Order (¶ 12), the FCC “affirm[ed] that a predictive dialer constitutes an automatic telephone dialing system and is subject to the TCPA’s restrictions on the use of autodialers.”
There is some question regarding the meaning of the FCC’s ruling. On one hand, some have suggested that any equipment that has the “capacity to dial numbers without human intervention” is an ATDS within the meaning of the TCPA, irrespective of the statute’s reference to a random or sequential number generator. See, e.g. Griffith v. Consumer Portfolio Serv., Inc.,
838 F. Supp. 2d 723, 727 (N.D. Ill. 2011) (even assuming defendant’s equipment
“cannot generate and dial random or sequential numbers,” it is an ATDS because it dials numbers from a list without human intervention). On the other hand, the FCC’s
statements could be read to parallel the Ninth Circuit’s ruling in Satterfield regarding “capacity” – i.e., equipment with “the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers” (2003 TCPA Order, ¶ 131) constitutes an ATDS even if only the latter capacity, and not the equipment’s capacity to use random or sequential number generators, is actually used. Pending petitions before the FCC also ask the FCC to clarify this issue. See, e.g., Petition for Rulemaking of ACA International.
F. Vicarious Liability of Creditor for Third-Party Debt Collection Calls.
Creditors frequently outsource debt collection activities to third party debt collectors, who may then call and/or text the cellular numbers of a debtor. To the extent any of these calls violate the TCPA, the creditor on whose behalf the call is made may be strictly liable for the violation. This appears to be the effect of the FCC’s 2008 TCPA Order,
where the FCC squarely stated that “a creditor on whose behalf an autodialed or
prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules,” and hence “[c]alls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.” 2008 TCPA Order ¶ 10.
Several courts have noted that the effect of the FCC’s 2008 TCPA Order is to impose strict liability. For example, in a suit against Verizon based on calls made by three outside collection agencies, the district court acknowledged that the FCC’s order “appears to impose a strict liability standard on creditors who farm their debts out to third-party debt collectors.” Martin v. Cellco Partnership d/b/a Verizon Wireless, 2012 WL 5048854 (N.D. Ill. Oct. 18, 2012). In Harris v. World Financial Network Nat’l Bank, 867 F. Supp. 2d 888, 894-95 (E.D. Mich. 2012) the court granted partial summary judgment on liability against all defendants (including the creditor) for calls placed by third-party collectors. And in Jamison v. First Credit Servs., Inc., the court denied a creditor’s motion for a stay and primary jurisdiction referral to the FCC, on the ground that the 2008 TCPA Order is clear and “[t]he FCC has unequivocally ruled that creditors are liable for calls placed by third-party debt collectors in violation of the TCPA.” 290 F.R.D. 92, 98 (N.D. Ill. 2013). The court explained that the FCC’s “use of the term ‘third party collector’ . . . . indicates that a creditor should be liable for calls violative of the statute made by the debt collectors they hired . . . regardless of whether traditional agency law would deem the debt collector an agent or independent contractor.” Id. While strict, this rule does benefit collectors in at least one way: if the debtor gave prior express consent to the creditor, the collector would stand in the creditor’s shoes and could place calls as if the collector itself had received that consent.
More recently, the FCC issued an order concluding that general federal common law principles of agency apply under the TCPA, such that a person may be vicariously liable for calls placed by a third party. Declaratory Ruling, In the Matter of The Joint Petition Filed by DISH Network, LLC, the United States of America, and the States of California, Illinois, North Carolina, and Ohio for Declaratory Ruling Concerning the Telephone Consumer Protection Act (TCPA) Rules, FCC 13-54 (May 9, 2013). These include “not only formal agency, but also principles of apparent authority and ratification.” Id. ¶ 28. The FCC was specifically addressing vicarious liability for telemarketing calls, and it did not purport to overturn or limit its prior statements regarding liability in the debt collection context.
II. Debt Collection and the Fair Debt Collections Practices Act ("FDCPA") A. Overview of the FDCPA
One of the purposes of the FDCPA, 15 U.S.C. § 1692, is "to eliminate abusive debt collections practices by debt collectors . . ." 15 U.S.C. § 1692 (3). The FDCPA provides in part:
(1) Communications in connection with debt collection. 15 U.S.C. § 1692c.
(a) Without prior consent, a debt collector may not communicate with the consumer (1) at any unusual time or place known to be inconvenient (including before 8:00 a.m. and after 9:00 p.m.);
(2) if the consumer is represented by an attorney with respect to such debt;
(b) Without prior consent of the consumer, a debt collector may not communicate with any person other than the consumer or his attorney about the debt
(2) Harassment or abuse. 15 U.S.C. § 1692d
A debt collector may not harass, oppress, or abuse any person in connection with the collection of a debt, such as:
(a) Use of threat of violence or obscene or profane language.
(b) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
(3) False or misleading representations or unfair practices. 15 U.S.C. § 1692e and 1692f.
In collecting or attempting to collect a debt, a debt collector may not use any false, deceptive or misleading representation, or unfair or unconscionable means.
(4) Civil liability. 15 U.S.C. § 1692k.
(a) A debt collector who violates any provision of the FDCPA is liable for: (1) any actual damage sustained by the person
(2) up to $1,000 for an individual or up to $500,000 or 1% of the net worth of the debt collector for a class action.
(3) the costs of the action, together with a reasonable attorney's fee as determined by the court.
(4) if the Court finds that an action under this section was brought in bad faith or to harass, the court may award reasonable attorney's fees to the defendant.
B. Conduct Considered Violations or Possible Violations of FDCPA
While some violations of the FDCPA may be apparent (e.g. threat of violence), other violations such as "causing a telephone to ring . . . with intent to annoy, abuse, or harass any person at the called number" can be more challenging to identify.
Calling a debtor immediately after hanging up may be considered harassment. See e.g. Arteaga v. Asset Acceptance, LLC, 733 F.Supp.2d 1218, 1227 (E.D. Cal. 2010) (debt collector may harass a debtor by immediately recalling a debtor after a debtor has hung up the telephone); Kuhn v. Account Control Technology, Inc. 865 F. Supp. 1443, 1453 (D. Nev. 1994) (finding that the debt collector harassed the debtor in violation of FDCPA when, after the debtor hung up on debt collector's representative, the debt collector recalled the debtor's place of employment two additional times within a five minute period). Calling a debtor at work or at the homes of family and friends can be harassment. Arteaga, 733 F.Supp.2d 1218, 1228 (E.D. Cal. 2010) ("The practice of calling a debtor outside of his or her home by calling the debtor's workplace or the homes of a debtor's family and friends-or calling at inconvenient hours, can also
constitute harassment."); Kuhn v. Account Control Technology, Inc. 865 F. Supp. 1443, 1453 (D. Nev. 1994) (finding that the debt collector harassed the debtor in violation of FDCPA when, after the debtor hung up on debt collector's representative, the debt collector recalled the debtor's place of employment two additional times within a five minute period of time); Sanchez v. Client Services, Inc., 520 F.Supp.2d 1149 (N.D. Cal. 2007) (actions of debt collectors seeking to collect consumer's debt, including making 54 telephone calls to consumer at work and leaving 24 messages on work answering machine, allegedly in an attempt to obtain consumer's location information, were intended to annoy, abuse and harass consumer, in violation of FDCPA and Rosenthal Act).
Calling a debtor numerous times in one day, in a short period of time or an even extended period of time can be harassment. See e.g., Arteaga v. Asset Acceptance, LLC, 733 F.Supp.2d 1218, 1228 (E.D. Cal. 2010) ("Calling a debtor numerous times in the same day, or multiple times in a short period of time, can constitute harassment under the FDCPA."); Kuhn v. Account Control Tech., Inc., 865 F. Supp. 1443, 1453 (D. Nev. 1994) (six telephone calls in 24 minutes constituted harassment in violation of FDCPA). In many instances, the issue of whether the number of calls over a particular time period constitutes harassment will be an issue of fact precluding summary
judgment. Hicks v. America's Recovery Solutions, LLC, 2011 WL 4540755, at *6 (N.D.
Ohio Sept. 29, 2011) (holding that 21 calls made over three-month period, 5 of which resulted in communication with the debtor, where the debt collector knew that debtor was represented by debt management company were sufficient facts to create a genuine issue of material fact as to whether debt collector had the intent to harass or annoy); Fausto v. Credigy Services Corp., 598 F.Supp.2d 1049 (N.D. Cal. 2009) (evidence that debt collection agency's employees had made more than 90 calls to consumers' home, that content of calls had been harassing in nature, employees had failed to identify themselves when calling, had allowed phone to ring repeatedly, and called back immediately after consumers hung up phone raised fact issue as to whether employees' conduct was offensive, precluding summary judgment); Akalwadi v. Risk Management Alternatives, Inc., 336 F.Supp.2d 492 (D. Md. 2004) (there was a genuine issue of material fact regarding whether debt collector, in telephoning consumer on daily basis and on one occasion making three phone calls in space of just five hours, and had resorted to abusive and harassing phone calls in attempt to collect debt, precluded entry of summary judgment on consumer's resulting claims under the FDCPA)
If a debt collector continues to call the debtor after the debtor has requested that the debt collector cease communications, intent to harass can be inferred from such conduct. See e.g., Gilroy v. Ameriquest Mortg. Co., 632 F.Supp.2d 132 (D.N.H. 2009) (intent to harass may be inferred by evidence that a debt collector continued to call the debtor after the debtor had asked not to be called and had repeatedly refused to pay the alleged debt, or during a time of day which the debtor had informed the debt collector was inconvenient.)
Whether an unanswered call constitutes a "communication" under the FDCPA depends on the circumstances. See e.g. Rush v. Portfolio Recovery Associates LLC, __ F. Supp. 2d __, No. 12-276(FLW) (DEA), 2013 WL 5645770 (D.N.J. Oct. 17, 2013) (finding unanswered telephone calls made prior to consumers retaining counsel were not "communications" under the FDCPA because nothing in the record showed consumers discerned that the unanswered calls were from debt collector attempting to deliver a message regarding a debt owed by consumers. Calls made after consumers hired counsel were considered "communications."); Cerrato v. Solomon & Solomon, 909 F. Supp. 2d 139 (D. Conn. 2012) (finding that 8 unanswered calls from debt collector after debtor sent cease and desist letter constituted "communications" under the FDCPA where debt collector's name appeared on caller ID and debt collector had previously called consumer 117 times regarding consumer's debts); Sussman v. I.C. System, Inc., 928 F. Supp. 2d 784 (S.D.N.Y. 2013) (consumer stated claim against debt collection agency for FDCPA violation prohibiting further communication after receiving notice to cease based on debt collector's automatic dialer continuing to place telephone calls to consumer's residence.).
C. Conduct Considered Not to be a Violation of the FDCPA
There are a number of cases where courts have found that there is no harassment under the FDCPA despite numerous calls. See e.g., Carmen v. CBE Group, Inc., 782 F. Supp. 2d 1223, 1231-32 (D. Kan. March 23, 2011) (granting summary judgment in favor debt collector when collector contacted debtor at her home 0-4 times a day and her work telephone number 0-3 times a day between August 31 and October 24, 2009 for a total of 149 calls to plaintiff during a two month period and collector spoke only once with plaintiff, at her place of employment, and debtor did not inform collector that she could not receive calls at work). Tucker v. The CBE Group, Inc., 710 F.Supp.2d 1301 (M.D. Fla. 2010) (facts did not raise reasonable inference of intent to harass where debt
collector made 57 calls to the plaintiff, including seven calls in one day, because the debt collector never spoke to the debtor, was never asked to cease calling, and never called back on the same day it had left a message); Saltzman v. I.C. Sys., Inc., No. 09-10096,
2009 WL 3190359 (E.D. Mich. Sept. 30, 2009) (granting summary judgment for the defendant despite 20 to 50 unsuccessful calls and 10 to 20 successful calls over roughly a month because defendant only called plaintiff's residence, the plaintiff did not answer a large majority of the calls, and did not send the defendant a cease and desist letter (although she did request that he stop calling, court reasoned that the volume of calls merely suggested a “difficulty of reaching Plaintiff, rather than an intent to harass."); Jiminez v. Accounts Receivable Mgmt., 2010 WL 5829206, at *6 (C.D. Cal. Nov. 15, 2010) (granting defendant collection company summary judgment because there was no evidence of defendant's intent to annoy, abuse or harass where defendant placed sixty-nine calls over a 115 day period, placed more than two calls in a day, but did not make calls to defendant's work, and never received a response to defendant's voice
messages).
Statements that a matter is "urgent" or "time sensitive" or that the debt collector may place a lien on property have been held not to be harassing, oppressive or threatening. See e.g. Baker v. Allstate Financial Services, Inc., 554 F.Supp.2d 945 (D. Minn. 2008) (debt collector's statement in voicemail that consumer's “case” was “urgent” and “time sensitive” was not sufficiently harassing, oppressive, and abusive to violate FDCPA); Shuler v. Ingram & Assoc., 710 F.Supp.2d 1213 (N.D. Ala. 2010) (debt collectors statement that it “may place a lien on plaintiffs' property, garnish [plaintiff's] wages, that [the debt collector] prosecutes debts like his, and always wins” did not constitute threats or actions that the debt collector could not or did not intend to take).
D. Consumer Financial Protection Bureau ("Bureau").
The Bureau was created on July 21, 2011 as a result of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act). The Bureau has "primary government responsibility for administering the FDCPA" and "shares overall
enforcement responsibility with the FTC and other federal agencies." CFBPANN.REP.
2012, Fair Debt Collection Practices Act. In the fiscal year ending September 30, 2013, the Bureau brought 14 enforcement actions and reported collections of over $81.5 million in civil money penalties.
On July 10, 2013, the Bureau issued Bulletin 2013-07 describing "certain acts or practices related to the collection of consumer debt that could, depending on the facts and circumstances, constitute UDAAPs [unfair, deceptive, or abusive acts or practices] prohibited by the Dodd-Frank Act." CFPB Bulletin 2013-07 at p.1. In that Bulletin, the Bureau reiterates that the obligation to avoid UDAAPs is in addition to any obligations that arise under the FDCPA and that "[o]riginal creditors and other covered persons and services providers involved in collecting debt related to any consumer financial product or service are subject to the prohibition against UDAAPs in the Dodd-Frank Act." Id. at p. 6. The Bureaus also advises in the Bulletin that that it will be watching the following practices closely:
• Collecting or assessing a debt and/or any additional amounts in connection with a debt (including interest, fees, and charges) not expressly authorized by the agreement creating the debt or permitted by law.
• Failing to post payments timely or properly or to credit a consumer's account with payments that the consumer submitted on time and then charging late fees to that consumer.
• Taking possession of property without the legal right to do so.
• Revealing the consumer's debt, without the consumer's consent, to the consumer's employer and/or co-workers.
• Falsely representing the character, amount or legal status of the debt.
• Misrepresenting that a debt collection communication is from an attorney.
• Misrepresenting that a communication is from a government source or that the source of the communication is affiliated with the government.
• Misrepresenting whether information about a payment or non-payment would be furnished to a credit reporting agency.
• Misrepresenting to consumers that their debts would be waived or forgiven if they accepted a settlement offer, when the company does not, in fact, forgive or waive the debt.
• Threatening any action that is not intended or the covered person or service provider does not have the authorization to pursue, including false threats of lawsuits, arrest, prosecution, or imprisonment for non-payment of a debt.
Id. at p. 5-6 (footnotes omitted).
