Sunday, September 8, 2013

FYI: MD Pa Holds TCPA Does Not Apply to Debt Collection Calls

The U.S. District Court for the Middle District of Pennsylvania recently followed the Meadows v. Franklin Collection Serv., Inc., 414 Fed. App'x 230, 235 (11th Cir. 2011) and Gager v. Dell Fin. Serv., LLC, No. 11–CV–2115, 2012 WL 1942079 (M.D. Pa. May 29, 2012) rulings, holding that a borrower's claims for violation of the Telephone Consumer Protection Act ("TCPA"),  47 U.S.C. §  227, which asserted that a creditor called its "1-800" business number in connection with collecting on a debt, and without consent and after notice of representation of counsel, failed as a matter of law because the FCC determined that all debt-collection circumstances are excluded from the TCPA's coverage.


The District Court further refused to exercise supplemental jurisdiction over the borrower's state law claims, because the claim over which the Court maintained original jurisdiction -- i.e., the TCPA claim -- was dismissed.  Therefore, the District Court dismissed the state law claims without prejudice.


A copy of the opinion is attached.


The plaintiff purchased computers that were allegedly primarily used for personal purposes.  The creditor allegedly used an automatic dialing system and automatic or pre-recorded messages to call the borrower supposedly over 1,000 times at his "1-800" work telephone number without the borrower's consent.


The plaintiff owned his own business and used the"1-800" number as part of his business.  He allegedly was charged a fee whenever a call was made to the "1-800" number and allegedly paid hundreds of  dollars in  fees due to the creditor's alleged calls.   Because the plaintiff allegedly neither consented to the creditor calling him on his  "1-800" number nor provided the number to the creditor as a means of contacting him,  he believed that the creditor obtained the number through "skip  tracing."  The plaintiff answered the creditor's calls on numerous occasions and allegedly told the creditor to refrain from calling him at his "1-800"  number.  


He also allegedly called the creditor and instructed the creditor to stop calling the "1-800" number."  Although the plaintiff's counsel allegedly sent the creditor cease and desist  letters via certified mail  in  October 2011, January  2012, and January 2013,  the creditor allegedly continued to call the plaintiff on  his  "1-800"  number.   


The plaintiff filed suit alleging that by repeatedly calling the borrower's "1-800" number without his consent, the creditor violated the TCPA;  the  Pennsylvania  Fair  Credit  Extension  Uniformity  Act  ("FCEUA"),  73  P.S.  §§  2270.1, et  seq.;  and  his  state  law  right  to  privacy  by  intrusion  upon  seclusion.   


The creditor moved to dismiss the Complaint, and the District Court granted the motion.


The District Court first addressed the borrower's TCPA allegations.  As you may recall, the TCPA was "[e]nacted in 1991 as part of the Federal Communications Act" to "deal with an increasingly common nuisance—telemarketing." ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d 513,514 (3dCir. 1998).  The plaintiff alleged that the creditor's unauthorized and repeated calls to his "1-800" number violate the TCPA. 


The TCPA in pertinent part, states: 


It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States, to make any call (other than a call made for emergency purposes or made with the prior express content of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice to any telephone number assigned to a paging service, cellular phone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.


47 U.S.C. §227(b)(1)(A)(iii). 


The District Court held that "the FCC has determined that all debt-collection circumstances are excluded from the TCPA's coverage."  Meadows v. Franklin Collection Serv., Inc., 414 F. App'x230, 235 (11thCir. 2011); see also Gager v. Dell Fin. Serv., LLC, No. 11–CV–2115, 2012 WL 1942079, at*6 (M.D. Pa. May29, 2012) ("The FCC has 'unequivocally stated' that calls solely for the purpose of debt collection are not telephone solicitations and do not constitute telemarketing and calls regarding debt collection. . . are not subject to the TCPA's separate restrictions on 'telephone solicitations.'") (quoting Meadows, 414 F. App'x at 236).


Accordingly, the District Court concluded that the plaintiff's TCPA claim failed as a matter of law.  The District Court also rejected the borrower's request for leave to amend because it ruled that any amendment would be futile because the borrower cannot state a claim upon which relief may be granted under the TCPA.


Next, the District Court declined to exercise supplemental jurisdiction over the state law claims alleging violation of the FCEUA and intrusion upon seclusion.  As you may recall, a district court may refuse to exercise such jurisdiction where, it "has dismissed all claims over which it has original jurisdiction." 28 U.S.C. §1367(c)(3).  Additionally, "where the claim over which the district court has original jurisdiction is dismissed before trial, the district court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so."  Borough of W. Mifflin v. Lancaster, 45F.3d780, 788 (3d Cir. 1995).


The District Court concluded there was no affirmative justification for exercising supplemental jurisdiction, beyond any ordinary inconvenience associated with dismissal.  Therefore, the Court dismissed the state law claims without prejudice, allowing the plaintiff to re-file them in state court.


Accordingly, the District Court dismissed the complaint with prejudice as to the TCPA allegations, but without prejudice as to the state law claims.






Ralph T. Wutscher
McGinnis Wutscher Beiramee LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
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