A federal judge in Pennsylvania has ruled that the Telephone Consumer Protection Act does not apply to debt-collection calls, even calls made to cellular telephones. A copy of the decision is available here.
Noting that Congress enacted the TCPA to address telemarketing, the decision relied upon a portion of the Eleventh Circuit Court of Appeals’ decision in Meadows v. Franklin[ref]414 F. App’x 230, 235 (11th Cir. 2011)[/ref] which stated, “the [Federal Communications Commission] has determined that all debt-collection circumstances 
are excluded from the TCPA’s coverage.”
The decision is certainly in the minority as nearly all courts examining the issue have determined that debt-collection calls made to cellular telephones using an automatic telephone dialing system or a prerecoreded voice violate the TCPA if the called party has not provided their “prior express consent” to receiving such calls. The Federal Communications Commission, which issues TCPA rules, has also considered debt collection calls within the scope of the TCPA.[ref]See, FCC Declaratory Ruling, FCC 07-232, para. 11 (January 4, 2008) (“We also reiterate that the plain language of section 227(b)(1)(A)(iii) prohibits the use of autodialers to make any call to a wireless number in the absence of an emergency or the prior express consent of the called party. We note that this prohibition applies regardless of the content of the call, and is not limited only to calls that constitute ‘telephone solicitations.’ However, we agree . . . that calls solely for the purpose of debt collection are not telephone solicitations and do not constitute telemarketing. Therefore, calls regarding debt collection or to recover payments are not subject to the TCPA’s separate restrictions on ‘telephone solicitations.'”)[/ref]
The decision in Roy v. Dell Financial Services is on appeal to the Third Circuit Court of Appeals and we expect a decision within the year.
Roy adds to a Growing List of Confusing TCPA Decisions
Roy joins several decisions over the past six months that have reached extraordinary conclusions, confusing interpretations of the TCPA. In May, a federal judge in the Southern District of Florida ruled that a consumer providing a cell phone number to a creditor is insufficient to establish the TCPA’s prior express consent.[ref]Mais v. Gulf Coast Collection Bureau, Inc., 2013 U.S. Dist. LEXIS 65603, 14-15 (S.D. Fla. May 8, 2013)[/ref] Mais rejected the argument it was bound by an FCC ruling, which found that “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.”[ref]In re Rules Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd 559, 564 (F.C.C. 2007)[/ref]. The Mais decision is on appeal to the Eleventh Circuit Court of Appeals.
A federal court in Wisconsin ruled in March that “preview dialing,” a form of automated dialing that requires human intervention to initiate the call, fell within the TCPA’s coverage.[ref]Nelson v. Santander Consumer USA, Inc., 2013 U.S. Dist. LEXIS 40799 (W.D. Wis. Mar. 8, 2013)[/ref] Relying on a 2003 FCC ruling that predictive dialers constitute an automatic telephone dialing system, the court found that the telephony system here, although it did not use the predicative dialer, still had the capacity to perform “predictive dialing.”[ref]Id, citing In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C.R. 14014, 14091-93 (July 3, 2003)[/ref] The decision was later vacated by the court and the case dismissed.
For assistance concerning TCPA issues, contact the attorneys at Maurice & Needleman who regularly defend and provide counsel on TCPA matters. The Consumer Financial Services Blog also provides a re-broadcast of its June 2013 webinar Hot Topics in TCPA Litigation, available here.
