Judge Applies FN7 to Dismiss TCPA Claim Against Collector, But Denies MTD on FDCPA Claim

A District Court judge in California has granted a defendant’s motion to dismiss claims it violated the Telephone Consumer Protection Act when it contacted an individual on his cell phone to attempt to collect on an unpaid debt because the defendant did not use an automated telephone dialing system, but denied the defendant’s motion to dismiss claims that it violated the Fair Debt Collection Practices Act because it does not meet the definition of debt collector under the statute.

A copy of the ruling in the case of Austria v. Alorica et al can be accessed by clicking here.

The plaintiff claims to have received 550 calls from 150 different phone numbers during a seven-month span, calls which continued to be placed after he allegedly made multiple attempts to revoke consent to be contacted.

But looking at Footnote 7 in the Supreme Court’s ruling in Facebook v. Duguid, which addresses the word “store” in the TCPA’s definition of an ATDS — equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator — Judge Otis D. Wright, II of the District Court for the Central District of California notes that it is not plausible to consider that the defendant was dialing numbers randomly or sequentially to attempt to contact the plaintiff.

“This Court joins these courts in finding that a system that selects phone numbers from a prepopulated list does not constitute an autodialer where the prepopulated list was not itself generated using a random or sequential number generator, even if the phone number selection process itself involves a random or sequential number generator,” Judge Wright wrote in dismissing the TCPA claim.

Judge Wright denied the defendant’s motion to dismiss claims that it does not meet the definition of a debt collector under the FDCPA. While the plaintiff never asserted that the defendant regularly engages in debt collection or that its principal purpose is debt collection, he does allege that the defendant in question had a business relationship with the original creditor, which compensated the defendant for collecting debts. The defendant was also alleged to use a “complex automated telephone system to collect those debts and that EGS, in its calls, expressly represented that they were calling to collect that debt,” Judge Wright wrote. “Moreover, in contacting Austria, EGS obscured the difference between EGS and Credit One, the entity to whom Austria purportedly owed debt. Under these facts, it is plausible that EGS’s principal purpose was debt collection.”

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