Can a Violation Under the Telephone Consumer Protection Act Serve as a Basis for a Federal Debt Collections Practices Act?
A Pennsylvania federal court judge has ruled an unequivocal “no.” This case arises out of a pre-recorded message to Ninouska Gomez. The messaged asked for Gomez, offered a pause for someone to hang up if they were not Gomez, and after the pause the message identified Oxford Law as the caller and that Oxford Law was trying to collect a debt.
The full text of the message was:
[P]lease hang up or disconnect. If you are Gomez, Vinouish please continue to listen to this message. There will now be a three-second pause in this message. By continuing to listen to this message you acknowledge that you are Gomez, Vinouish. You should listen to this message in private as it contains personal and private information. There will now be a short pause in this message to allow you to listen to this message in private.
This is Casey Fox from Oxford Law, LLC. This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose. Please contact me at 215-526-2600. Thank you.
The Telephone Consumer Protection Act (“TCPA”) is a federal law that amended the Communications Act of 1934. The TCPS aims to restrict telephone solicitations (better known as “telemarketing”) and the use of automated telephone equipment. The act restricts the use of automatic dialing systems, prerecorded voice messages, texts and fax machines. Per the TCPA, a prerecorded message must identify the business, individual or entity that is responsible for the call at the outset of the message.
Gomez then attempted to bootstrap the TCPA violation in to also claim a violation of the Federal Debt Collection Practices Act (“FDCPA”). The FDCPA was created to protect consumers from abusive, unfair or deceptive practices from debt collectors. Gomez specifically stated that 15 U.S.C. Section 1692e(5) of the FDCPA, which states that a violation has occurred when the collector “threat[ens] to take any action that cannot legally be taken or that is not intended to be taken.” The reasoning was that since the phone call was illegal under TCPA, it was also not a legal action under Section 1692e(5).
The judge did not find Gomez’s argument convincing. The judge stated,
First, section 1692e(5)’s plain meaning applies only to threats to take any action that cannot legally be taken or that is not intended to be taken. Here, the message is devoid of any threat. Defendant is not threatening to institute a debt collection lawsuit. Defendant is not threatening to garnish plaintiff’s wagers. Rather, defendant is asking the plaintiff to call it back.
The judge’s additional reasoning was,
Second, even if the court were to construe section 1692e(5) to include both threats and illegal acts, defendant’s technical violation of the TCPA—the illegal act—is not the type of illegal act the FDCPA prohibits. Courts to have addressed this issue have all held that the illegal act pertained to the filing of a lawsuit.
In an interesting footnote, the judge states in his view, the defendant’s violation of the TCPA was at most “technical,” because the introductory few sentences to ensure the message complied with the FDCPA. Under the FDCPA, a debt collector “may not communicate, in connection with the collection of any debt, with any person other than the consumer.” 15 U.S.C. § 1692c(b). In essence, the defendant “violated” the TCPA in order to comply the FDCPA. A conundrum indeed!
Click here for the full opinion.