Antitrust Law Daily Wrap Up, PRIVACY—E.D. Cal.: Debt collection calls were subject to Telephone Consumer Protection Act, (Sep 6, 2013)

By Edward L. Puzzo, J.D.

The Telephone Consumer Protection Act (TCPA) contains no exceptions for calls made by debt collectors or calls made to cellular phones and does not necessarily require use of an automatic telephone dialing system, the federal district court in Sacramento, California has ruled (Iniguez v. CBE Group, September 5, 2013, Mendez, J.).

Nancy Iniguez alleged that CBE Group, in violation of the TCPA, had placed numerous collection calls to her cell phone, seeking to collect a debt owed to Dish Network by a third party who had previously been identified with her phone number. CBE moved to dismiss Iniguez’ TCPA claims on the grounds that the TCPA does not apply to debt collectors, that Iniguez failed to adequately allege that an automated dialer was used, and that Iniguez did not allege an injury arising from the calls.

Application of TCPA to debt collectors. CBE argued that the legislative history indicated that the TCPA should not apply to debt collectors. The court responded that the legislative history was irrelevant absent any ambiguity in the statutory text, that no such ambiguity existed, and that the statute made no exception for debt collectors. Further, while the TCPA permitted the FCC to make exceptions for certain residential calls made for a commercial purpose that do not contain an unsolicited advertisement, the statute did not permit the FCC to make similar exceptions for calls made to wireless numbers. Accordingly, the court ruled, the federal regulations applicable to the TCPA do not contain a debt collector exception, nor any exceptions related to calls made to cellular phones.

Automatic telephone dialing systems. CBE argued that the debt collection calls in question were not made with an automatic telephone dialing system because the debt collector was obviously trying to reach a particular person, not make random calls as required by the TCPA. The court stated that the TCPA clearly prohibits making any call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless number. Since this section is written in the disjunctive, the court stated, a violation may occur if any one of an automated telephone dialing system, an artificial voice, or a prerecorded voice is used to make the call. Iniguez had alleged personally receiving calls with an artificial voice, which was sufficient for the allegation to survive a motion to dismiss, the court ruled. Further, whether or not the calls to Iniguez were randomly generated from CBE’s automatic telephone dialing system was not determinative, because the TCPA only requires that the system have that capability, not that it was actually utilized with respect to a particular phone call.

Allegations of injury. CBE also argued that Iniguez had failed to allege injury, in the form of having to pay for the offending calls. The court stated that the relevant section of the TCPA was written in the disjunctive, prohibiting calls to phone numbers assigned to a cellular phone service or any service for which the called party is charged for the call. Iniguez’ allegations were sufficient to survive a motion to dismiss without an allegation that she was charged for CBE’s calls to her cell phone, the court ruled.

The case is No. 2:13-cv-00843-JAM-AC.

Attorneys: Seyed Abbas Kazerounian (Kazerounian Law Group) for Nancy Iniguez. Sean Patrick Flynn (Foley & Mansfield, PLLP) for The CBE Group.

Companies: The CBE Group.

Cases: Privacy CaliforniaNews