The U.S. District Court for the Southern District of Florida recently confirmed that, under the federal Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”): (1) providing a telephone number to a creditor "reasonably evidences prior express consent ... to be contacted at that number regarding the debt;” and (2) debt collection calls placed to residential land line number are excluded from the scope of the TCPA, and cannot support a TCPA claim.
A copy of the opinion is available at: Link to Opinion
The defendant bank issued a credit card to the plaintiff in 2005. The plaintiff provided his home telephone number when he applied for the card. The plaintiff failed to pay and the issuing bank sold the account, which was subsequently assigned several more times for collection.
The plaintiff’s complaint alleged that in the process of trying to collect on the debt since late 2011, defendants violated the federal Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., the federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, and the Florida Consumer Collection Practices Act (“FCCPA”).
The defendants moved for summary judgment. The court granted summary judgment in favor of all of the defendants because the plaintiff consented to be called in connection with the credit card debt when he provided his home telephone number to the bank when he applied for the credit card.
The court added that the TCPA claim also failed as a matter of law because, even though the plaintiff alleged in his amended complaint that he received calls on his cellular telephone, his TCPA claim as pled referenced only the subsection dealing with residential telephone lines (47 USC 227(b)(1)(B)), and not the subsection which prohibits calls to cellular telephones without consent (47 USC 227(b)(1)(A)), and the Federal Communications Commission by rule, 47 C.F.R. § 64.1200(a)(3)(iii), excluded debt collection calls from coverage under subsection 227(b)(1)(B).
The court also granted summary judgment in favor of one of the collection agency defendants on the FDCPA claim, because the FDCPA requires the plaintiff to prove that he was the target of collection activity arising from a consumer debt, and plaintiff failed to provide any record evidence that the collector called him in connection with a consumer debt.
Finally, the court granted summary judgment in favor of all of the defendants on the state law FCCPA claim because, like the FDCPA, the FCCPA only applies to a consumer debt, and the plaintiff failed to provide any record evidence that he was called in connection with a consumer debt.
Ralph T. Wutscher
McGinnis Wutscher LLP
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Chicago, Illinois 60602
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Admitted to practice law in Illinois
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