Antitrust Law Daily Wrap Up, PRIVACY—4thCir: Automatically Dialed, Prerecorded Debt Collection Calls Not Actionable Under Maryland Telephone Consumer Protection Act, (Nov 16, 2012)

By Thomas Long, J.D.

An individual (Michael Worsham) could not pursue a claim under the Maryland Telephone Consumer Protection Act (MTCPA) against a debt collection company (Accounts Receivable Management) for repeatedly calling Worsham’s phone number in an effort to collect a debt allegedly owed by Worsham’s sister-in-law, the U.S. Court of Appeals in Richmond has held (Worsham v. Accounts Receivable Management, Inc., November 14, 2012, Per Curiam). The MTCPA did not create a cause of action for unconsented-to phone calls using an automatic telephone dialing system or an artificial or prerecorded voice.

During ARM’s efforts to locate the debtor, it discovered Worsham’s phone number as a possible contact for her. ARM allegedly called Worsham’s phone number approximately ten times in May 2010. Worsham asserted that he answered only two of the calls, and both times he heard a prerecorded message telling him to press “1” if he was the debtor and “2” if he was not the debtor. On one of those occasions, Worsham pressed “2,” and upon hearing more prompts and options, he hung up. Worsham stated that on the other occasions, he hung up the phone without pressing “2.” At no point did Worsham talk to a live representative.

Worsham filed suit in state court, alleging violations of the Fair Debt Collection Practices Act (FDCPA), the federal Telephone Consumer Protection Act, and the MTCPA. ARM removed the case to federal court. The district court granted ARM’s motion for summary judgment on Worsham’s FDCPA and MTCPA claims, and Worsham appealed.

In an earlier suit filed by Worsham against a different defendant, the Maryland Court of Special Appeals held that the MTCPA did not create a cause of action based on an alleged violation of 64 C.F.R. Sec. 64.1200—the federal regulation restricting telephone calls using automated dialing systems or prerecorded messages—which was the same cause of action that Worsham alleged here.

Although the question of whether the MTCPA created this cause of action had not been addressed by Maryland’s highest court, the Fourth Circuit said that it nevertheless saw no reason to reject the determination of the state’s intermediate appellate court, particularly given that Worsham was the plaintiff in that case. Therefore, the court affirmed the order granting summary judgment for ARM on the MTCPA claim.

The court also held that summary judgment was properly granted for ARM on the FDCPA claim. The calls were permitted under Sec. 1692b of the FDCPA, which authorized debt collectors to contact third parties more than once if the collector “reasonably believed” that the earlier response by the third party was incomplete. Because Worsham hung up before responding to the additional prompts and options after he pressed “2” to indicate he was not the debtor, a reasonable person would believe that Worsham’s response to the call was incomplete, the court said.

The case is No. 11-2390.

Michael C. Worsham, pro se. John Curtis Lynch (Troutman Sanders, LLP) for Accounts Receivable Management, Inc.

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