Prior Express Consent Defeats TCPA Claim, But Jury May Find 87 Calls Over 19 Days to be FDCPA Violation

On April 12, a federal judge in Illinois ruled that prior express consent in a credit card agreement defeated a Telephone Consumer Protection Act (TCPA) claim, but there was a genuine issue of fact for a jury to decide whether 87 calls to a consumer over a period of 19 days was a Fair Debt Collection Practices Act (FDCPA) violation.  The case is Losch v. Advanced Call Center Technologies, LLC. (Case No. 15-C-6644, U.S. District Court, ND of IL, Eastern Division.) 

The case came before the Honorable Judge Gary Feinerman on defendant’s motion for summary judgment.

Editor’s Note:  A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial. 

A copy of Judge Feinerman’s Memorandum Opinion and Order can be found here. 

Background 

Plaintiff, Jenna Losch, brought a lawsuit against defendant, Advanced Call Center Technologies, LLC (ACCT) alleging that ACCT violated the TCPA, 47 U.S.C. § 227 et seq., and the FDCPA, 15 U.S.C. § 1692 et seq., Doc. 1, by calling her cell phone on numerous occasions over a two-week period.

The court determined the following facts as undisputed:

• Losch visited a Banana Republic store in Chicago on May 4, 2014.
• Losch decided to obtain a Banana Republic credit card after a sales associate explained that it would entitle her to a discount for her purchases that day.
• The sales associate briefly reviewed the terms of the credit card agreement with Losch, and she then signed the agreement and provided her cell phone number.
• Losch was generally familiar with how the credit card worked, and she knew that she would be bound by the terms of the credit card agreement even if she did not read them.
• Among those terms were the following:

This Agreement. This is an Agreement between you and Synchrony Bank, 170 Election Road, Suite 125, Draper, UT 84020, for your credit card account shown above. By opening or using your account, you agree to the terms of the entire Agreement. The entire Agreement includes the four sections of this document and the application you submitted to us in connection with the account. These documents replace any other agreement relating to your account that you or we made earlier or at the same time.

Consent To Communications. You consent to us contacting you using all channels of communication and for all purposes. We will use the contact information you provide to us. You also consent to us and any other owner or servicer of your account contacting you using any communication channel. This may include text messages, automatic telephone dialing systems, and/or an artificial or prerecorded voice. This consent applies even if you are charged for the call under your phone plan. You are responsible for any charges that may be billed to you by your communications carriers when we contact you. 

• Losch charged the purchases she made at Banana Republic that day to the Banana Republic card, and she later used the card to pay for other purchases.
• In the late summer or early fall of 2014, Losch began experiencing financial hardship and stopped making payments on the card.
• ACCT makes outbound debt collection calls on behalf of Synchrony Bank, the bank that issued Losch’s card.
• ACCT was assigned to make collection calls to Losch, and it used an automatic dialer system to call the cell phone number that Losch provided on her credit card application.
• ACCT called Losch 87 times between December 5 and December 23, 2014.
• Three to five calls were placed each day, and no two calls were made less than about two hours apart.
• Losch did not pick up any of the calls until December 23. On that occasion, she told the ACCT representative that she was unable to pay the debt and asked that ACCT halt the calls.
• ACCT did not call her again. 

The Court’s Decision - The TCPA Claim 

Judge Feinerman quickly decided the TCPA issue. He wrote: 

“ACCT is correct that Losch consented to be called. To obtain her credit card, Losch signed a contract that, as noted above, contained this language: 

Consent To Communications. You consent to us contacting you using all channels of communication and for all purposes. We will use the contact information you provide to us. You also consent to us and any other owner or servicer of your account contacting you using any communication channel. This may include text messages, automatic telephone dialing systems, and/or an artificial or prerecorded voice. The contact information Losch provided was her cell phone number, and that is the number that ACCT called. 

That ACCT rather than Synchrony Bank made the calls is of no legal consequence. The credit card agreement expressly contemplated the possibility that a “servicer” would contact Losch, and the TCPA treats consent given to a creditor as if it were given to a third-party debt collector acting on the creditor’s behalf.

Accordingly, Losch provided her prior express consent to receiving debt collection calls from ACCT when she obtained her Banana Republic card. That consent necessarily defeats her TCPA claim." 

The Court’s Decision - The FDCPA Claim 

On the FDCPA claim Judge Feinerman wrote:

“The FDCPA provides in relevant part:

A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

… (5) Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number. 

Whether repeated phone calls were made with intent to annoy, abuse, or harass depends on the volume and pattern of calls. Generally, there are two types of evidence presented to show an intent to harass under § 1692d(5). First, where a plaintiff has shown that he asked the collection agency to stop calling … and the collection agency nevertheless continued to call the plaintiff … . Second, the volume and pattern of calls may themselves evidence an intent to harass. 

Because ACCT did not continue to call Losch after she asked it to stop, Losch opposes summary judgment based on the volume and pattern of ACCT’s calls. 

As a general rule, whether the volume and pattern of a debt collector’s calls violates the FDCPA is a jury question.

ACCT called Losch’s cell phone 87 times over a period of nineteen days, with three to five (but usually five) calls each day. True, ACCT did not call Losch early in the morning or late at night, or make one call immediately after another. Those facts certainly could lead a reasonable jury to find in ACCT’s favor, but not necessarily so.

ACCT continued to call Losch day after day, at various times of day, on weekends and weekdays for over two weeks, any belief that Losch was not answering the calls because she missed them inadvertently or that she would have wanted to be called at a different time became less and less reasonable—or so a reasonable jury could find. A jury thus could conclude that, at some point during those nineteen days, ACCT’s intent in continuing to call crossed the line from “a legitimate persistent effort to reach the plaintiff.

Losch’s FDCPA claim therefore survives summary judgment.”

insideARM Perspective 

This case provides a positive result for the ARM industry on the TCPA claim and the issue of prior express consent. However, the case proceeds on the FDCPA claim. The court ruled that whether 87 calls in 19 days shows intent to annoy, abuse, or harass is a question of fact for the jury to decide. The judge denied the motion for summary judgment on the FDCPA claim. 

The real FDCPA question for the ARM industry is this: What is the dialer penetration rate that should be used to avoid potential liability for “annoying or harassing?” Years ago, a 5-times per day dialer penetration rate was commonplace. However, most ARM companies have backed off that type of call frequency.  The CFPB has clearly indicated in their Outline of Proposed Rules that they believe that type of call frequency is too high.  

What is the magic number?

The industry awaits final CFPB rules.