Pennsylvania Federal Court Finds No TCPA Exemption for Debt Collection Autodialed Calls to Cell Phone

In Forrest v. Genpact Servs., LLC, 3:12-CV-2249, 2013 WL 4516479 (M.D. Pa. Aug. 26, 2013), the United States District Court for the Middle District of Pennsylvania held that a plaintiff bringing a Telephone Consumer Protection Act ("TCPA") claim under 47 U.S.C. § 227(b)(1)(A) is not required to allege that she actually answered the phone calls placed to her cellular telephone. Defendant Genpact Services, LLC, admitted to calling Plaintiff's cellular telephone over 225 times in a 54-day period using an automatic telephone dialing system. Plaintiff brought a TCPA claim against Defendant for placing these calls to her cellular telephone without her consent. Defendant moved to dismiss the TCPA action, arguing that Plaintiff failed to specifically allege in her complaint that she answered the phone calls. A claim under 47 U.S.C. § 227(b)(1)(A)(iii) has three elements: (1) "to make a call (other than a call made for emergency purposes or made with the prior express consent of the called party);" (2) using any automatic telephone dialing system or an artificial or prerecorded voice;" and (3) "to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call." The Court held that the pleading elements do not require Plaintiff to allege that she answered the phone calls placed to her cellular telephone. In finding that Plaintiff set forth a cause of action under the TCPA, the Court held that the determination as to whether Plaintiff answered the phone calls is best addressed after discovery has been completed. While punting on the issue as to whether section 227(b)(1)(A)(iii) distinguishes between answered and unanswered calls, the Court noted that the Ninth Circuit Court of Appeals, in defining the phrase "to make any call" under 47 U.S.C. § 227(b)(1)(A), determined this includes "to communicate with or try to get into communication with a person by a telephone." Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir.2009). This reference to Satterfield indicates that the Court is not of the belief that it matters whether Plaintiff answered the phone calls placed to her cell phone, only that Defendant tried to communicate with her. Defendant also attacked the TCPA claim on the basis that the phone calls made to Plaintiff's cellular telephone were made for debt collection purposes, and therefore do not fall under the ambit of the TCPA. Specifically, Defendant argues that debt collection phone calls fall under the codified FCC exemption for calls made to a person with whom there is an established business relationship. Subsequent to the parties briefing this issue, the United States Court of Appeals for the Third Circuit addressed the issue and held that "there is not established business relationship or debt collection exemption that applies to autodialed calls made to cellular telephones." Gager v. Dell Financial Services, LLC, 2013 U.S.App. LEXIS 17579, 20 (3d Cir.2013). Applying Gager, the Court rejected Defendant's argument that Plaintiff failed to state a claim under the TCPA because the TCPA does not apply to debt collection calls. For more information on consumer finance litigation topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.

Posted in: Pennsylvania, TCPA
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