The case, in which the plaintiff purposefully allowed the collection agency to continue to make “wrong number” calls in a blatant attempt to drive-up damages, is stayed to wait for the FCC’s response to ACA’s TCPA petition.
Last week, a Wisconsin federal court granted an ACA International collection agency member’s motion to stay a Telephone Consumer Protection Act lawsuit pending resolution of the Petition for Rulemaking of ACA International. The petition is currently before the Federal Communications Commission. The court noted that a ruling on the FCC petition may provide some definitive guidance that will place it in a better position to decide the case, and ordered the parties to report back in six months.
In the case, Gensel vs. Performant Technologies, Inc., No. 13-C-1196, 2015 WL ----- (E.D.Wis. Jan. 28, 2015), the plaintiff’s cell phone provider assigned her a number that was previously assigned to another person who defaulted on a student loan. The collection agency repeatedly called that number in an attempt to collect on the debt. On the advice of counsel, the plaintiff documented all the calls she received for a lengthy period of time amassing $94,000 in purported damages at $500 per alleged violation. Once the plaintiff finally answered the phone and told the collection agency it had the wrong number, the collection agency stopped calling. In response, the plaintiff filed suit against the collection agency alleging that it violated the TCPA when it repeatedly called her cell phone number through an automated telephone dialing system and left prerecorded messages without her consent in an attempt to collect on someone else’s debt.
The court largely based the stay of the lawsuit on ACA’s Jan. 31, 2014 industry-leading petition for rulemaking. In its broad-based TCPA petition, ACA makes four specific requests of the FCC:
1. “Confirm that not all predictive dialers are categorically automatic telephone dialing systems (’ATDS’ or ’autodialers’);
2. Confirm that ’capacity’ under the TCPA means present ability [to store, produce or dial phone numbers];
3. Clarify that prior express consent attaches to the person incurring a debt, and not the specific telephone number provided by the debtor at the time a debt was incurred; and
4. Establish a safe harbor for autodialed ’wrong number’ non-telemarketing calls to wireless numbers.”
The court held that the application of the TCPA to debt collection calls is far from clear. As such, the court concluded that a stay was appropriate because it, “will promote uniformity in the administration of the TCPA,” particularly since ACA’s petition asks the FCC to resolve issues of “capacity” and autodialed “wrong number” calls, which are issues at play in the case.
The court reasoned that, “instead of furthering a split of authority regarding the issued presented by Gensel’s complaint [the issues of “capacity” and autodialed “wrong number” calls], it is more efficient to simply wait for the FCC to do what it has already been asked to do.”
Notably, the court was troubled by the absence of an adequate safe harbor protection for autodialed “wrong number” calls, which ACA seeks in its petition to the FCC. The court voiced strong concerns about parasitic suits by opportunistic litigants, like the plaintiff in Gensel and her lawyers, who are obviously incentivized to accumulate damages by the strict liability nature of the TCPA.
The court suggested that “[t]he behavior of litigants such as Gensel may inform the FCC’s determination regarding a safe harbor provision.” The Gensel decision adds to the list of courts staying cases until the FCC clarifies the uncertain terms in the TCPA. A non-exhaustive list of TCPA cases stayed on grounds that the FCC might provide helpful guidance in response to ACA’s petition and/or other petitions pending before it can be found in ACA’s Fastfax #9518, which is exclusively available to members. Members must be logged in to ACA’s website to access Fastfax documents.