On February 16, 2017, a judge from the United State District Court for the Eastern District of Missouri dismissed a Telephone Consumer Protection Act (TCPA) claim against a debt collector that had made over 100 debt collection calls to the wrong consumer’s cell phone. The case is Schlattman v. Portfolio Recovery Associates, LLC (PRA) (Case No. 4:16cv1183, United States District Court, Eastern District of Missouri).
Plaintiff Robert Schlattmann brought an action under the Fair Debt Collection Practices Act (FDCPA) and TCPA against defendant Portfolio Recovery Associates, LLC (PRA), alleging that PRA called him more than 100 times for a debt that Schlattmann did not owe.
Defendant moved to dismiss Count II of plaintiff’s amended complaint (the TCPA claim) for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).
Editor’s Note: The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the legal sufficiency of a complaint so as to eliminate those actions “which are fatally flawed in their legal premises and deigned to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.
Plaintiff had alleged that PRA began calling plaintiff’s residential telephone number, ending in -8996, from several different telephone numbers on December 1, 2014. The phone calls continued through June 11, 2016 and totaled over one hundred in number; however, the defendant’s phone calls were allegedly intended to collect on a debt that plaintiff did not owe. Plaintiff alleges that he never entered into an agreement by which he consented to be contacted by telephone by defendant, and he did not have a preexisting or current business relationship with defendant.
Count II of the complaint claimed that PRA’s conduct violated the TCPA, 47 U.S.C. § 227, et seq. and 47 C.F.R. 61.1200, et seq., by knowingly and willfully placing non-emergency prerecorded telephone calls to plaintiff’s phone without express authorized consent of plaintiff, without an established business relationship, and without an exemption and/or without a commercial purpose in violation of 47 U.S.C. § 227(b)(1)(B).
PRA moved to dismiss Count II because it says its actions were exempted from the TCPA provision relied upon by plaintiff. The TCPA provision prohibits initiating “any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes, is made solely pursuant to the collection of a debt owed to our guaranteed by the United States, or is exempted by rule or order by the [Federal Communications] Commission under paragraph (2)(B).” 47 U.S.C. § 227(b)(1)(B).
Paragraph (2)(B) provides:
“that the “Commission shall prescribe regulations to implement the requirements of this subsection,” and the Commission’s regulations provide that § 227(b)(1)(B) does not apply to a call if it is “made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing.” 47 C.F.R. § 64.1200(a)(3)(iii).” Emphasis added.
The Memorandum and Order dismissing the TCPA claim was written by the Honorable Stephen N. Limbaugh. Judge Limbaugh wrote:
“Numerous other courts have held that this regulation exempts collection calls made to non-debtors because they are commercial calls that do not include an unsolicited advertisement.
Although plaintiff suggests he does not know what defendant’s business is or for what purpose it called him, he at the same times alleges that the defendant called plaintiff “as a debt collector to collect a consumer debt.” The complaint does suggest, in the alternative, that defendant was calling plaintiff “as a non-debt collector, but for an unlawful purpose, including for an unsolicited advertisement or telephone solicitation.” Such an allegation would remove defendant’s conduct from the regulatory exemption.
Plaintiff’s conclusion that the calls were by a “non-debt collector” is not supported by the necessary facts to escape the TCPA exemption because he does not allege that the calls “include[d] or introduce[d] an advertisement or constitute[d] telemarketing.” Instead, nearly every allegation involves defendant’s making collection calls, not advertising or telemarketing calls. Although plaintiff complains of “factual uncertainty” as to the purpose of defendant’s calls and the need for discovery, plaintiff had the burden to plead a plausible claim. The plaintiff’s TCPA claim is not plausible on its face and will be dismissed.”
This is not the typical TCPA case. When we think of TCPA claims we generally think of calls to a cell phone using an Automatic Telephone Dialing System (ATDS). In this case the calls were made to the wrong person. The calls were made to “plaintiff’s residential telephone number.” That phone number was apparently not a cell phone.
The resulting Memorandum and Order, while positive for PRA and the industry should be viewed in relation to the specific facts involved in this case.
By Tim Bauer