Antitrust Law Daily Wrap Up, PRIVACY—NDTex: TCPA and Caller ID Act Claims Fail Against Debt Collection Company, (May 7, 2013)

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

A debt collection company’s alleged calls to a residential telephone subscriber to locate a debtor, refusal to provide the subscriber with a copy of its "do not call" policy, and blocking of its caller ID information did not constitute a violation of the Telephone Consumer Protection Act (TCPA), the Truth in Caller ID Act of 2009, and associated regulations, the federal district court in Amarillo, Texas has ruled (Genaw v. NCO Financial Systems, Inc., May 6, 2013, Robinson, M.).

Gary Genaw alleged that NCO Financial Systems, Inc. placed two calls to his telephone number seeking to locate an individual other than Genaw who owed a debt. He alleged that NCO violated the TCPA and related regulations by making these calls and by refusing to provide him with a copy of NCO’s "do not call" policy on his request and violated the Truth in Caller ID Act by withholding caller ID information on the second of the two calls.

The court first determined that the calls did not violate the TCPA. The court explained that the TCPA prohibits "initiat[ing] any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the express written consent of the called party, unless the call is made for a commercial purpose and does not include or introduce an advertisement or constitute telemarketing." Here, Genaw alleged that both calls were made for the commercial purpose of locating a debtor, did not allege that the calls were made "using an artificial or prerecorded voice," and did not allege that "either call included or introduced an advertisement or constituted telemarketing." Therefore, Genaw had failed to state a claim under the TCPA, in the court’s view.

Genaw also failed to state a claim under the Truth in Caller ID Act, according to the court. The Truth in Caller ID Act prohibited sending false, misleading, or inaccurate caller ID information, but contained a safe-harbor provision stating that it should not "be construed to prevent or restrict any person from blocking the capability of any caller identification service to transmit caller identification information." Since the Truth in Caller ID Act permitted withholding caller ID information, NCO did not violate it by doing so.

Finally, the court found Genaw did not state a claim regarding NCO’s refusal to provide him with a copy of its policies "for maintaining a list of persons who request not to receive telemarketing calls made by or on behalf of" NCO. The relevant provision of the U.S. Code and its associated regulations only applied to a "‘person or entity’ making telephone ‘calls for telemarketing purposes to a residential telephone subscriber,’" the court observed.

The case is Civil Action No. 2:12-CV-0260-J.

Attorneys: Gary Genaw, pro se. Whitney L. White (Sessions Fishman Nathan & Israel LLC) for NCO Financial Systems, Inc.

Companies: NCO Financial Systems, Inc.

Cases: Privacy TexasNews