San Jose Bankruptcy & Fair Debt Collection Practices Act Lawyer Blog

Debt collectors using high-tech autodialers had better be sure to abide by the TCPA, as well as the FDCPA (Fair Debt Collection Practices Act).

A federal judge in Illinois ruled that the owner of a cell phone can sue a debt collector for placing autodialer calls with pre-recorded messages, even if the owner of the cell phone was not the person the debt collector intended to call. The case is Loidy Tang v. Siegel & Associates, 2011 U.S. Dist. LEXIS 63298 (N.D. Ill 2011).

In the case a consumer alleged that a debt collector had used an automatic telephone dialing system (also known as a robodialer or predictive dialer) to place numerous calls, and leave automated messages, in an attempt to collect a debt. The consumer alleged the calls violated the TCPA (The TCPA is also known as the Telephone Consumer Protection Act- a federal law that protects people from certain (usually unwanted) telephone calls. The messages the debt collector left stated:

Message for Kimberly Nelson. If you are not Kimberly Nelson, please hang up or disconnect now. If you are Kimberly Nelson, please continue to listen to this message. You should not listen to this message in public as this pertains to personal and private information. There will now be a three second pause in this message to allow you to listen in private.

The judge ruled that the debt collector intended the call the cell phone and thus the owner of the cell phone had a right to sue, even if that person is not Kimberly Nelson. Thus, just as in the case we wrote about last week on this blog, Courts have been interpreting the TCPA broadly to carry out the intent of Congress to protect consumers. State of Maryland v. Universal Elections. Indeed, California courts have also applied the TCPA broadly, and hold that it applies to debt collectors. Robinson v. Midland Funding, LLC, 2011 U.S. Dist. LEXIS 40107 (S.D. Cal. Apr. 13, 2011).

The Loidy Tang Court also went on say the consumer was allowed to sue the debt collector for placing a telephone call and failing to meaningfully disclose its identity in violation of the FDCPA (generally, a debt collector is required to state that it is a debt collector, and cannot disguise the nature of the call). The Court relied on two other recent cases that ruled the same way. Hutton v. C.B. Accounts, Inc., 2010 WL 3021904, at *3 (C.D. Ill. Aug. 3, 2010); Edwards v. Niagra Credit Solutions, Inc., 586 F. Supp. 2d 1346, 1360 (N.D. GA 2008).

Anyone how has ever been bothered by the annoying telephone calls during dinner, or some other peaceful time you spend at home can appreciate the saying that a man's home is his castle. Yet, it seems there are still people who try to take advantage of knowing you will be at home at a certain time and try to take away your serenity (the usual culprits are debt collectors and telemarketers).

Those of us in California, and especially those who live near San Jose or Silicon Valley, are also very familiar with these new hi-tech automated dialers, or robo-dialers, that are programmed to call us just when we are about to take our next bite of a California roll. There has been a battle brewing over whether these calls are a nuisance or a necessity, whether they are something we must live with, or completely get rid of.

On May 25, 2011, a federal district judge in Maryland refused to throw out a case brought by the State of Maryland against a defendant that hired a company by the name of robodial.org. No kidding, that's their real name. Robodial's job was to dial 112,000 homes and deliver a robotic message. State of Maryland v. Universal Elections.

According to the Court's written opinion:

"The message did not identify the caller or disclose on whose behalf the call was being made. (Id. ¶15.) The message also did not disclose the address or phone number of the person or entity that initiated the call. (Id.) On November 2, 2010, the prerecorded voice message was broadcast to the 112,000 phone numbers on the list uploaded by the defendants. (Id.) The State of Maryland alleges that the defendants "omitted the identifying information required by the TCPA in order to disguise the purpose of their calls." (Id. ¶16."

The TCPA is also known as the Telephone Consumer Protection Act- a federal law that protects people from certain (usually unwanted) telephone calls. The Court went back to language from when Congress created the TCPA and said:

"Evidence compiled by the Congress indicates that residential telephone subscribers consider automated or prerecorded telephone calls, regardless of the content or the initiator of the message, to be a nuisance and an invasion of privacy.")." Citing, Telephone Consumer Protection Act of 1991, Pub. L. 102-243 § 2(10).

The Defendant, robodial.org, tried to argue that it was placing telephone calls for political purposes and thus the calls didn't serve a commercial purpose, and shouldn't be prohibited by the TCPA. The Court held that robodial.org could indeed be liable under the TCPA.

Thus, just like the collection agencies that have tried to narrow the focus of the TCPA, and say it doesn't apply to them (see below), the TCPA is being applied broadly, for the protection of the general public. While the TCPA has different aspects, and different rules as to when an auto-dialer can be used to call a residential phone or cell phone, the bottom line is this- Congress and the Courts agree these calls may be a nuisance and invasion of privacy.

Days later, on June 5, 2011, in a Fair Debt Collection Practices Act (FDCPA) case another federal judge in San Diego ruled debt collectors who make auto-dialed or prerecorded calls to a wireless number are subject to the TCPA. Jachimiec v. Regent Asset Management Solutions, LLC, 2011 U.S. Dist. LEXIS 56956 (S.D. Cal. June 5, 2011), citing Robinson v. Midland Funding, LLC, 2011 U.S. Dist. LEXIS 40107 (S.D. Cal. Apr. 13, 2011). The Fair Debt Collection Practices Act protects consumers from abusive, misleading and deceptive conduct; including unlawful telephone conduct.