Federal Judge Grants Summary Judgment on TCPA Issue, But Denies It on FDCPA

A judge for the District Court for the Northern District of Georgia has granted summary judgment in favor of a collection agency that it did not use an automated telephone dialing system when it attempted to contact an individual for an unpaid debt, relying on the recent Appeals Court decision in ACA International v. FCC, but denied summary judgment because of the sheer volume of calls that were made by the agency in attempting to collect on the debt.

A copy of the ruling in the case of Maddox v. CBE Group can be accessed by clicking here.

The plaintiff filed her lawsuit after she did not pay her cable bill to Comcast. During the course of a little more than two months, the defendant placed 120 calls to the plaintiff, attempting to collect on the debt. No more than five calls were ever made during any given day, the calls were all made within the window prescribed by the Fair Debt Collection Practices Act, at least 90 minutes lapsed between any two calls, the defendant did not call the plaintiff on more than five consecutive days, and the defendant never left a message.

The plaintiff did attempt to call the defendant three times, but hung up before speaking with a representative.

The only time the plaintiff and a representative from the defendant spoke was on one call made by the defendant. During that call, the plaintiff did not dispute the debt, but said she did not “want to pay for it right now,” although she was “probably going to open [her] account again.”

About a year later, the plaintiff sent a letter to the defendant, announcing the intention to sue for violating the TCPA and the FDCPA.

Judge Steve C. Jones ruled that the telephony platform used by the defendant, which required a representative to manually click a button to place a call, did not meet the definition of an ATDS, especially following the Court of Appeals for the D.C. Circuit’s ruling in ACA v. FCC.

On the issue of the FDCPA violation, however, the judge was not as kind. In looking at Section 1692(d)(5), which includes the language “causing a telephone to ring … repeatedly or continuously with intent to annoy, abuse, or harass,” the judge ruled that the facts “preclude summary judgment.”

“The Court cannot say, as a matter of law, that Defendant did not violate § 1692d(5). The issue of whether Defendant’s conduct harassed, oppressed, or abused Plaintiff is a question for the jury.”

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