Telephone Consumer Protection Act

Martin v. Cellco Partnership d/b/a Verizon Wireless, et al., No. 12 C 5147, 2012 WL 5048854 (N.D. Ill. Oct. 18, 2012) Plaintiff entered into a wireless contract with Defendant, which he later canceled. Plaintiff sent Defendant a payment with the cancellation notice of the amount he owed under the contract as well as revocation of consent to call his cell phone number. Defendant sent Plaintiff a bill, which included an early termination fee, restocking fee, fees for services used and other taxes and charges. Plaintiff did not pay the fees, and Defendant assigned the debt to three agencies for collection. The agencies attempted to collect the debt by calling Plaintiff's cell phone after which time Plaintiff filed a class action complaint. Defendant moved to dismiss Plaintiff's TCPA claim, arguing that it could not be held liable for calls agencies made to Plaintiff's cell phone. Specifically, according to Defendant, while it may be held vicariously liable for such calls, Plaintiff did not allege that Defendant exercised or retained the right to control the manner in which the agencies made the alleged calls. Rejecting this argument, the court noted that the FCC has ruled that a creditor is responsible for calls made on its behalf when it stated "[s]imilarly, a creditor on whose behalf an autodialed call or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commissioner's rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor placed the call." The court also rejected Defendant's argument that the FCC's statements were inapplicable because the statements did not address the issue of vicarious liability, but rather, prior express consent, stating "[o]n the current record, the Court can discern no reason why the statement in the 2008 TCPA Order is inapplicable to the instant case."