Antitrust Law Daily Wrap Up, PRIVACY—E.D.N.Y.: Listing cell phone number on credit card application not consent under TCPA to debt collection calls to different cell phone number, (Sep 24, 2013)

By Tobias J. Gillett, J.D., LL.M.

A debt collection company was liable under the Telephone Consumer Protection Act (TCPA) for calls made to a debtor, because a statutory exemption for debt collection calls did not apply to calls made to cell phones, and because the debtor’s provision of a cell phone number in filling out a credit card application did not constitute prior express consent to be contacted on a different cell phone number in connection with a credit card debt he later incurred, the federal district court in Central Islip, New York has ruled (Levy v. Receivables Performance Management, LLC, September 23, 2013, Bianco, J.). However, the court declined to grant summary judgment to either party on the issue of whether the debt collection company’s calls were made knowingly and willfully so as to incur liability for treble damages under the TCPA.

Receivables Performance Management, LLC (RPM), a debt collection company, called Omer Levy’s cell phone number using a robo-dialer at least 284 times over a four month period in an attempt to collect on a credit card debt. RPM obtained the number from Trans Union with no indication that the number belonged to a cell phone, and RPM did not conduct any research to determine whether it was a cellular number before dialing it. Levy had acquired the number after incurring the debt, and had provided a different number when filling out the application for the credit card. Levy filed suit against RPM under the TCPA, and both parties moved for summary judgment.

TCPA applicability. The court rejected RPM’s contention that it was shielded from TCPA liability under a statutory exemption for autodialed calls “made to any person with whom the caller has an established business relationship,” an exemption the FCC had determined applied to debt collection calls made by third parties on behalf of the company holding the debt. The court observed that the exemption only applied to autodialed calls made to landlines, and it was undisputed that RPM had placed its calls to Levy’s cell phone number.

TCPA liability. The court concluded that Levy had not provided prior express consent to receiving calls on his cell phone by providing his former cell phone number on his credit card application. The court explained that the FCC had held that providing a cell phone number during the transaction that resulted in a particular debt constituted prior express consent to be contacted through that number in connection with that debt. However, whether or not Levy had provided a cell phone number when filling out his application, the number RPM had called him on was not that number, and therefore “he most certainly could not have manifested consent to be contacted at a different cell phone number unbeknownst to him at the time,” according to the court. The court distinguished the present case from other cases in which courts had found debtors had given consent when they had provided a cell phone number to a creditor, on the ground that those debtors had taken affirmative acts of express consent, while Levy had never taken any such affirmative steps with respect to his current cell phone number.

The court rejected RPM’s argument that it was exempted from TCPA liability because the cell phone number was the only means of contacting Levy. The court noted that the TCPA only provided two statutory exemptions: (1) emergency situations, and (2) instances where the recipient has given prior express consent. Therefore, no authority supported RPM’s asserted exemption.

The court also declined to follow RPM’s argument that Levy provided prior express consent by initiating calls to RPM and discussing his financial situation with RPM’s representatives. Consumers are only deemed to have granted prior express consent if they provide a cell phone number to a creditor “during the transaction that resulted in the debt owed.” Since RPM received Levy’s number from Trans Union, not the credit card company, Levy would not be considered to have granted prior express consent, the court concluded.

Finally, the court determined that Levy could sustain his TCPA claim even though he had not proved that he had been charged for RPM’s calls. The court found that courts “have routinely held that a plaintiff need not prove that he was charged for a cellular phone call to state a claim under the TCPA,” and the court agreed with their reasoning.

Treble damages. However, the court declined to grant summary judgment to either party on the question of whether Levy could recover treble damages for RPM’s TCPA violations. The court explained that a TCPA plaintiff could recover either its actual monetary loss from the violation or $500 for each violation, and could recover three times that amount if the court found the defendant had engaged in willful or knowing violations of the TCPA.

Here, although Levy contended that RPM knew or had a responsibility to determine that the number belonged to a cell phone, RPM claimed it believed it was only receiving home telephone numbers from Trans Union at the time it acquired Levy’s number, and everyone at RPM purportedly treated the number as if it was a home telephone number. Therefore, RPM had raised an issue of fact for a jury.

Moreover, RPM disputed Levy’s assertion that he had informed RPM that it was calling his cell phone number and that he no longer wanted to be contacted by RPM on it, and pointed to notes taken by its representatives during Levy’s calls that did not document any such request. Even if Levy had informed RPM that they were calling his cell phone, and even if that fact caused to RPM’s further calls to constitute knowing and willful violations of the TCPA, a factual issue would remain regarding when that exchange occurred. Treble damages would only apply to those calls made after RPM’s actions became knowing and willful, the court observed. Finally, the fact that RPM had previously been found to have violated the TCPA in other cases was insufficient to render its calls in the present case knowing and willful.

The case is No. 11-CV-3155 (JFB) (ARL).

Attorneys: Joseph Mauro (The Law Office of Joseph Mauro, LLC) for Omer Levy. Alba Alessandro (Hodgson Russ LLP) and Peter Cipparulo for Receivables Performance Management, LLC.

Companies: Receivables Performance Management, LLC

Cases: Privacy NewYorkNews