Antitrust Law Daily Wrap Up, PRIVACY—M.D. Pa.: Automated calling of “1-800” business number to collect consumer debt did not violate TCPA, (Jul 15, 2013)

By John W. Arden, J.D., LL.M,

A credit company’s repetitive and continuous calling of a “1-800” business number, using an automatic dialing system, in an attempt to collect a consumer debt did not constitute a violation of the federal Telephone Consumer Protection Act (TCPA), the federal district court in Scranton, Pennsylvania, has ruled (Roy v. Dell Financial Services, LLC, July 12, 2013, Caputo, A.). The consumer’s TCPA claim was dismissed for failure to state a claim, since the statute does not cover calls solely for the purpose of debt collection. State law privacy claims were dismissed for lack of jurisdiction after dismissal of the federal law claim.

Background. According to plaintiff Darren Roy, Dell Financial Services, LLC has called Roy on a repetitive and continuous basis, as often as ten times per day, to attempt to collect a consumer debt arising from his purchase of computers used primarily for personal purposes. Using an automatic dialing system and automatic or pre-recorded messages, Dell has called Roy more than 1,000 times at the “1-800” number Roy uses as part of the business he owns. Each time a call is made to the “1-800” number, Roy is charged a fee, and Roy has paid hundreds of dollars in fees due to Dell’s calls. Because Roy has neither consented to Dell calling this number nor given the number to Dell as a means of contacting him, he believes that Dell obtained the number through “skip tracing.”

Roy has answered Dell’s calls on numerous occasions and has told Dell to refrain from calling his “1-800” number. He also has called Dell and instructed it to stop calling the number. Through his counsel, Roy sent Dell three cease-and-desist letters, but the calls continued.

Roy filed a complaint, alleging that Dell violated the TCPA, the Pennsylvania Fair Credit Extension Uniformity Act (FCEUA), and his state law right to privacy by intrusion upon seclusion. Dell moved to dismiss the TCPA claim for failure to state a claim and moved to dismiss the state law claims for lack of subject matter jurisdiction.

TCPA claim. The complaint alleged that Dell’s unauthorized and repeated calls to his “1-800” number violated the TCPA’s prohibition against making calls using any automatic dialing system or an artificial or prerecorded voice to any telephone service for which the called party is charged for the call. Roy claimed that Dell called his “1-800” number using an automatic dial system or pre-recorded message more than 1,000 times and that he is charged a fee for every call made to his “1-800” number. He also alleged that these calls were an attempt to collect a consumer debt that he incurred by purchasing computers primarily used for personal purposes.

The court held that all debt collection circumstances are excluded from coverage of the TCPA. The Federal Communications Commission unequivocally stated that calls solely for the purpose of debt collection were not telephone solicitations, do not constitute telemarketing, and are not subject to the TCPA’s restrictions on telephone solicitations. Roy’s request to leave to file an amended complaint was denied, since an amendment to the complaint would not alter the fact that he could not state a claim upon which relief could be granted.

State law claims. Roy’s state law claims for violation of the Pennsylvania Fair Credit Extension Uniformity Act and right to privacy by intrusion upon seclusion were dismissed for lack of jurisdiction because the claim over which the federal court had original jurisdiction was dismissed. There was no affirmative justification for exercising supplemental jurisdiction beyond any ordinary inconvenience associated with dismissal.

The case is Civil Action No. 3:13-CV-738.

Attorneys: Craig Thor Kimmel (Kimmel & Silverman) for Darren Roy. Anthony L. Gallia (Duane Morris, LLP) for Dell Financial Services, LLC.

Companies: Dell Financial Services, LLC

Cases: ConsumerProtection Privacy PennsylvaniaNews