United States District Court Judge Grants Collection Agency’s Motion to Stay TCPA Class Action Pending FCC Clarification

On February 20, 2014, the Western District of Washington granted a defendant-collection agency’s motion to stay a Telephone Consumer Protection Act (“TCPA”) class action.  In Hurrle v. Real Time Resolution, Inc., 2014 U.S. Dist. LEXIS 2204 (W.D. Wash. Feb. 20, 2014), a consumer filed a class-action lawsuit against a collection agency for allegedly calling his cellular telephone number using an autodialer to collect on a debt.  The plaintiff alleged that the calls were in violation of the TCPA, 47 U.S.C. § 227(b).  The collection agency filed a motion to stay the action pending the outcome of several petitions to Federal Communications Commissions (“FCC”), the Federal agency tasked with creating rules to implement the TCPA.  Specifically, the agency argued that debt collection calls, as non-telemarketing calls, were not subject to the TCPA.  The collection agency reasoned that the FCC, rather than the court, had the requisite expertise to determine whether the TCPA applied to debt collection calls.

Because plaintiff’s complaint alleged that the collection agency implemented an autodialer to call debtors regarding unpaid debt, the Western District agreed that the action should be stayed pending an FCC declaratory ruling.  In the Order, District Judge Benjamin H. Settle wrote, “[t]he law is unclear whether Congress intended the TCPA to prevent this activity.  Telemarketing is one activity while collecting debt from known debtors seems to be a wholly separate activity.  Whether the latter activity falls within the scope of the TCPA is currently being addressed by Congress and the FCC.”

This decision is interesting because the FCC has already ruled that content is irrelevant to a determination of whether the TCPA applies, at least in regard to cellular telephone numbers. In its 2008 Ruling, the FCC stated in relevant part,

“[t]he Commission also reiterates that the plain language of section 227(b)(1)(A)(iii) of the [TCPA] prohibits the use of autodialers to make any call to a wireless number in the absence of an emergency or the prior express consent of the called party.  The Commission notes that this prohibition applies regardless of the content of the call, and is not limited only to calls that constitute ‘telephone solicitations.’” 

Thus, the FCC has already recognized that all calls, at least to wireless telephone numbers, do implicate the TCPA. Further, in its TCPA orders, including those entered prior and subsequent to 2008, the FCC has specifically addressed debt collection and created specific regulations thereto. Moreover, several district courts throughout the country, relying on the FCC’s regulations, have held that the TCPA’s prohibition on calls to wireless telephone numbers applies to debt collection calls. Thus, to say the least, it is odd that this particular court has ruled that action should be stayed pending a decision on whether debt collection is exempted from the TCPA’s requirements.

For more information on this subject, contact Stephanie Strickler at 312-334-3465 or sstrickler@messerstrickler.com.