ANDERSON v. AFNI, INC.
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE STEWART DALZELL ON 5/11/11. 5/12/11 ENTERED AND COPIES E-MAILED.(ti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
May 11, 2011
Plaintiff Tara Anderson sues defendant AFNI, Inc.
(“AFNI”) for violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227, the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692, et seq., and the Pennsylvania
common law of privacy.
On January 7, 2011, Anderson filed a
motion for partial summary judgment and on the same day AFNI
filed its motion for summary judgment.
Anderson’s motion claims
that she is entitled to summary judgment on her TCPA claim, while
AFNI’s motion seeks summary judgment on all three of Anderson’s
For the reasons set forth below, we will deny Anderson’s
motion for partial summary judgment, grant AFNI’s motion for
summary judgment as to the federal claims, and dismiss the
remainder of the case.
Under Fed. R. Civ. P. 56(a), “[t]he court shall grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” where “[a] party asserting that
there is a genuine dispute as to a material fact must support
that assertion with specific citations to the record.”
Romeo, 2011 WL 1519389, at *3 (3d Cir. 2011) (citing Rule 56(c)).
We will thus begin by reciting the undisputed facts in this
matter, and then consider the disputed facts that the parties
have supported with their specific citations to the record.
The parties do not dispute that Tara Anderson was the
victim of identity theft at the hands of Tara Sampson, who pled
guilty to that offense and served time in state prison for her
Pl.’s Partial Mot. Summ. J. (“Pl.’s MSJ”) ¶¶ 4-5.
Between 2007 and 2010, AFNI purchased six delinquent Verizon
accounts in Tara Sampson’s name; the account numbers for these
accounts ended in 69, 56, 92, 14, 70, and 88.
Def.’s Mot. Summ.
J. (“Def.’s MSJ”) ¶ 1; Pl.’s Resp. to Def.’s Mot. Summ. J.
(“Pl.’s Resp.”) ¶ 1.
Anderson was not responsible for the debts
associated with those accounts, and never gave permission to AFNI
to call her at her home telephone number -- a number with the
area code “412" and ending in “2345" (“the 412 number”) -- or at
any other number.
Pl.’s MSJ ¶¶ 2, 3, 6.
AFNI acquired Account 69 on October 19, 2007 and
Account 56 on May 23, 2009, and made no attempt thereafter to
collect on either account.
Def.’s MSJ ¶¶ 2-3; Pl.’s Resp. ¶¶ 2-
AFNI did report Account 56 to credit reporting agencies,
however, one of which placed the account tradeline on Anderson’s
Def.’s MSJ ¶ 4; Pl.’s Resp. ¶ 4.
Anderson discovered this account on her credit report, and
disputed it through the credit reporting agency.
Pl.’s MSJ ¶ 8-
In August of 2009, AFNI received a Consumer Dispute
Verification (“CDV”) Form from the credit reporting agency which
stated that Anderson “[c]laims true identity fraud, account
Provide or confirm complete ID.”
MSJ ¶ 5; Pl.’s Resp. ¶ 5.
AFNI requested that the credit
reporting agency delete the tradeline from Anderson’s credit
profile, and on August 19, 2009, AFNI closed Account 56.1
MSJ ¶¶ 6-7; Pl.’s Resp. ¶¶ 6-7.
AFNI purchased Account 92 on July 22, 2009 and engaged
skip tracing services to find contact information for Sampson,
which yielded the 412 number.
Def.’s MSJ ¶ 8; Pl.’s Resp. ¶ 8.
AFNI had closed Account 69 on June 1, 2010. Def.’s
MSJ ¶ 2; Pl.’s Resp. ¶ 2. Neither AFNI nor Anderson offers an
explanation as to why AFNI closed this account.
A collection call placed to this number on January 20, 2010
reached Anderson, who informed an AFNI representative that the
number did not belong to Sampson and should be removed from
Account 92 -- a request with which AFNI immediately complied.
Def.’s MSJ ¶¶ 9-10; Pl.’s Resp. ¶¶ 9-10.
On April 19, 2010, AFNI purchased Account 14 and then
bought Accounts 70 and 88 on June 28, 2010.
15, 17; Pl.’s Resp. ¶¶ 13, 15, 17.
Def.’s MSJ ¶¶ 13,
With respect to each account,
AFNI once again engaged skip tracing services to locate Sampson,
and these services once again produced the 412 number.
attempted to contact Sampson to collect on these accounts between
April and August of 2010, with some of its attempts made to the
412 number, and though Anderson answered some of these calls
after January of 2010, she never informed AFNI that it was
calling the wrong number in its efforts to reach Sampson.
MSJ ¶¶ 14, 16, 18, 19; Pl.’s Resp. ¶¶ 14, 16, 18, 19.
From January through August 2010, AFNI placed fortyfive calls to the 412 number: twenty-five calls regarding Account
14, eleven calls for Account 70, five calls for Account 88, and
four calls for Account 92.
Def.’s MSJ ¶ 19; Pl.’s Resp. ¶ 19.
Anderson answered eighteen of these calls.
AFNI used a
telephone vendor, SoundBite, to place collection calls to the 412
number, and this system was designed to play an automated message
under certain circumstances.
Def.’s MSJ ¶¶ 25-26; Pl.’s Resp. ¶¶
This message identified the person whom AFNI was
attempting to contact and listed a series of options that the
call recipient could choose, including pressing a number if the
telephone number called did not correspond to the person AFNI was
attempting to reach.
Def.’s MSJ ¶ 27; Pl.’s Resp. ¶ 27.
At all times, AFNI attempted only to collect debts
Sampson owed, and Anderson at no time believed that she owed the
debts that AFNI sought to collect.
Resp. ¶¶ 23-24.
Def.’s MSJ ¶¶ 23-24; Pl.’s
Moreover, though the 412 number is indeed
Anderson’s home phone number, Pl.’s MSJ ¶ 2, she is not the legal
subscriber for the number; her husband, Philip Anderson, is.
Def.’s Suppl. in Supp. of Mot. Summ. J. (“Def.’s MSJ Suppl.”);
Pl.’s Resp. at 21.
AFNI made no calls to any cellular number
associated with Anderson.
Def.’s MSJ ¶ 30; Pl.’s Resp. ¶ 30.
Finally, the parties agree that AFNI has in place
policies regarding telephone numbers that AFNI learns are not
associated with the entity it is attempting to contact: such
policies direct account representatives to remove the numbers
from each account in AFNI’s possession in which they appear, and
to make a notation to those accounts that the specified numbers
Def.’s MSJ ¶¶ 33-35, 37-38; Pl.’s Resp. ¶¶ 33-35,
AFNI also maintains a “universal Do Not Call List” of
telephone numbers to which calls are never placed.
39; Pl.’s Resp. ¶ 39.
Def.’s MSJ ¶
AFNI placed the 412 number on its “Do Not
Call” list after Anderson brought this action.
Pl.’s MSJ ¶ 29.
While these are the undisputed facts, the parties
disagree on a number of other points, including (1) the number of
calls AFNI initiated to Anderson; (2) whether all calls AFNI
placed to Anderson had the potential to deliver an automated
message; and (3) whether the debts of Sampson that AFNI sought to
collect arose from personal, family, or household purposes.
Regarding the number of calls AFNI initiated to the 412
number, Anderson alleges that AFNI places debt collection calls
through its agents Soundbite and Livevox, and that each day AFNI
“initiates a ‘daily file’ request to one of its robo-dialer
vendors that a set of accounts be collected.”
Pl.’s MSJ ¶¶ 17-18
(citing Dep. of Joe Wenslauskis, Ex. E to Pl.’s MSJ at 13-14,
Anderson asserts that between January 8, 2010 and August
15, 2010, AFNI “attempted” seventy-six such calls to the 412
number, id. ¶ 22 (citing AFNI’s Records, Ex. F to Pl.’s MSJ),
arguing that it “is undisputed that AFNI began the process of
placing robo-calls to Plaintiff . . . 76 times.”
Id. at 9.
AFNI concedes that “[t]he SoundBite report indicates
that there are 76 instances of that phone number showing up in
the SoundBite data base,” Def.’s Resp. to Pl.’s MSJ (“Def.’s
Resp.”) at 6 (citing Dep. of Joe Wenslauskis, Ex. 12 to Def.’s
MSJ at 64).
However, AFNI avers that “[t]he record clearly shows
that AFNI did not initiate a call with each one of the entries,”
and that “[o]f those 76 instances, only 45 calls were made.”
(emphasis omitted) (citing Ex. 12 to Def.’s MSJ at 57, 65).
As for the capacity of AFNI’s calls to deliver an
automated message, Anderson claims that “[e]very call placed by
SoundBite on AFNI’s behalf has the potential to deliver an
automated, prerecorded message, whether answered by a person or
connected to a voicemail or answering service.”
Pl.’s Resp. ¶ 26
(citing Dep. of Joe Wenslauskis, Ex. L to Pl.’s Resp. at 27).
AFNI responds that “[t]he SoundBite system, as configured by
AFNI, is not designed to play an automated message for any
received call other than a call answered by a live person.”
Def.’s MSJ ¶ 26 (citing Ex. 12 to Def.’s MSJ at 68).
Regarding the nature of Sampson’s debts, AFNI asserts
that “[t]here is no evidence that the underlying credit
transactions that created the obligations which became Accounts
14, 77 and 88 were for personal, family or household purposes.”
Id. ¶ 21 (citing Dep. of Tara Anderson, Ex. 10 to Def.’s MSJ at
Anderson disagrees, arguing that: (1) AFNI sought to
collect the debts in question from Tara Sampson, not any company
or corporation, Pl.’s Resp. ¶ 21 (citing Dep. of Lisa Anderson,
Ex. C to Pl.’s Resp. at 70); (2) the addresses found in AFNI’s
collection notes are residential addresses, id. (citing AFNI’s
Collection Notes, Ex. H to Pl.’s Resp at 3-4); (3) AFNI sent a
debt collection letter to Anderson’s residential address which
was addressed to an individual, not a business, and included the
verbatim warning the FDCPA requires for consumer debts, id.
(citing AFNI’s Collection Letter, Ex. J to Pl.’s Resp.); and (4)
the debt associated with Account 56 was placed on Anderson’s
personal credit report, not any business credit report.
(citing Consumer Dispute Verification, Ex. A to Pl.’s Resp.).
On a motion for summary judgment, “[t]he moving party
bears the initial burden of showing that the non-movant has
failed to establish one or more essential elements of its case.”
Connection Training Servs. v. City of Phila., 358 Fed. Appx. 315,
318 (3d Cir. 2009) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986)).
If the moving party meets its burden, “the
non-movant must go beyond the pleadings and come forward with
specific facts indicating a genuine issue for trial,” id. (citing
Celotex, 477 U.S. at 324).
A factual dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party. . . . The mere existence of a scintilla
of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.”
Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 252 (1986) (cited in Sheddy Family Trust
ex rel. Sheddy v. Piatt Twp., 404 Fed. Appx. 629, 631 (3d Cir.
Of course, we “must draw all reasonable inferences in
favor of the nonmoving party, and [we] may not make credibility
determinations or weigh the evidence.”
Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000) (cited in
Eisenberry v. Shaw Bros., 2011 WL 1226881, at *1 (3d Cir. 2011)).
In evaluating Anderson’s motion for partial summary
judgment, then, the case law requires that we draw different
inferences than we would in considering AFNI’s motion for summary
Because we can rule on both Anderson’s motion -- which
solely concerns her claim under the TCPA -- and AFNI’s motion
with respect to the TCPA on the basis of the undisputed facts, we
will not draw any factual inferences in our TCPA analysis.
examining the remainder of AFNI’s motion for summary judgment, we
will draw all reasonable inferences in favor of Anderson as the
Anderson’s Claim under the TCPA
As our Court of Appeals has observed, the Telephone
Consumer Protection Act was “[e]nacted in 1991 as part of the
Federal Communications Act” to “deal with an increasingly common
nuisance -- telemarketing.”
ErieNet, Inc. v. Velocity Net, Inc.,
156 F.3d 513, 514 (3d Cir. 1998).
The TCPA provides that
It shall be unlawful for any person within the United
States, or any person outside the United States if the
recipient is within the United States -(A)
to make any call (other than a call made for
emergency purposes or made with the prior express
consent of the called party) using any automatic
telephone dialing system or an artificial or
prerecorded voice -. . .
(iii) to any telephone number assigned to a
paging service, cellular telephone service,
specialized mobile radio service, or other
radio common carrier service, or any service
for which the called party is charged for the
to initiate any telephone call to any residential
telephone line using an artificial or prerecorded
voice to deliver a message without the prior
express consent of the called party, unless the
call is initiated for emergency purposes or is
exempted by rule or order by the [Federal
Communications Commission, “FCC”] under paragraph
47 U.S.C. § 227(b)(1)(A)-(B).
Under § 227(d)(1)(A), it is also
unlawful for any person within the United
States . . . to initiate any communication
using a telephone facsimile machine, or to
make any telephone call using any automatic
telephone dialing system, that does not
comply with the technical and procedural
standards prescribed under this subsection,
or to use any telephone facsimile machine or
automatic telephone dialing system in a
manner that does not comply with such
Under the TCPA, plaintiffs may bring “an action to
recover for actual monetary loss from such a violation, or to
receive $500 in damages for each such violation, whichever is
“If the court finds that the
defendant willfully or knowingly violated this subsection or the
regulations prescribed under this subsection, the court may, in
its discretion, increase the amount of the award to an amount
equal to not more than 3 times the amount available under
subparagraph B of this paragraph.”
Anderson asserts three claims under the TCPA, arguing
that AFNI violated §§ 227(b)(1)(A)(iii), (b)(1)(B), and (d)(1)(A)
by (1) “initiating telephone calls to Plaintiff’s cellular
telephone using artificial or prerecorded voices to deliver
messages without Plaintiff’s consent,” Pl.’s Compl. ¶ 32; (2)
“initiating telephone calls to Plaintiff’s residential telephone
line using artificial or prerecorded voices to deliver messages
without Plaintiff’s consent,” id.; and (3) “initiating telephone
calls to Plaintiff using an automated telephone dialing system
that was not in compliance with the technical and procedural
standards prescribed by the TCPA.”
Anderson asserts that she is entitled to summary
judgment on her TCPA claims because “the undisputed evidence
shows that AFNI initiated 76 telephone calls to Plaintiff at her
home number using its robo-dialers with the capacity to deliver
prerecorded voice messages to the recipient of such calls,” and
“[t]he evidence also shows that at no time did the Plaintiff
consent to these phone calls.”
Pl.’s MSJ at 8.
urges that “this Court should find willful violations and award
treble damages of $1,500 for each unlawful call after January 20,
2010,” for a total judgment of $110,000.
Id. at 10, 11.
AFNI claims that it is entitled to summary judgment on
Anderson’s TCPA claims for three reasons2: (1) “Plaintiff cannot
AFNI also argues that, if we find that it is not
entitled to summary judgment on Anderson’s TCPA claims, it is
nonetheless true that Anderson “is only entitled to seek
show that she has standing to bring a claim under the TCPA,”
Def.’s MSJ at 28; (2) “AFNI’s telephone calls placed to [the 412
number] are exempt under 47 C.F.R. § 64.1200(a)(2)(iii),” id. at
31, since the calls were “neither an unsolicited advertisement or
[sic] a telephone solicitation,” id. at 30; (3) Anderson’s claim
is foreclosed by the FCC’s “express exemption for calls made to a
party with whom the caller has an established business
relationship,” id. at 32 (citing 47 C.F.R. § 64.1200(a)(2)(iv)),
and the FCC’s finding that “‘all debt collection circumstances
involve a prior or existing business relationship,’” id. (quoting
7 FCC Rcd. 8752, 8771-72 (1992)); and (4) AFNI “is not using an
‘automatic telephone dialing system’ as defined by the TCPA.”
Id. at 35.
Anderson’s Standing Under The TCPA
We will first consider whether Anderson has standing to
bring her TCPA claims.
As our Court of Appeals has noted, “[t]he
doctrine of standing incorporates both a constitutional element
compensation for . . . eighteen (18) calls under the TCPA,”
Def.’s MSJ at 36, and that treble damages are not warranted
because “AFNI did not knowingly or willfully violate the TCPA.”
Id. at 37. Because we will grant summary judgment to AFNI on the
TCPA claims, we need not reach these contentions.
and a non-constitutional, ‘prudential’ element.”
Soc’y v. UDV N. Am., Inc., 266 F.3d 164, 174-75 (3d Cir. 2001).
A court should also consider whether a plaintiff bringing suit
under an Act of Congress has statutory standing, or “whether
Congress has accorded this injured plaintiff the right to sue the
defendant to redress his injury.”
Graden v. Conexant Sys., Inc.,
496 F.3d 291, 295 (3d Cir. 2007) (emphasis in original).
“Constitutional standing is a threshold issue that we
should address before examining issues of prudential standing and
Joint Stock Soc’y, 266 F.3d at 175.
As the Supreme Court explained in Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992) (internal citations, quotation marks,
brackets, and ellipses omitted):
[T]he irreducible constitutional minimum of
standing contains three elements. First, the
plaintiff must have suffered an “injury in
fact” -- an invasion of a legally protected
interest which is (a) concrete and
particularized, and (b) actual or imminent,
not “conjectural” or “hypothetical.” Second,
there must be a causal connection between the
injury and the conduct complained of -- the
injury has to be fairly traceable to the
challenged action of the defendant, and not
the result of the independent action of some
third party not before the court. Third, it
must be “likely,” as opposed to merely
“speculative,” that the injury will be
redressed by a favorable decision.
We are satisfied that Anderson has constitutional standing in
She has demonstrated an injury in fact -- the receipt
of nearly fifty calls to her residential telephone number over
eight months from an apparently implacable automated caller.
AFNI caused this injury by initiating these calls and the injury
Anderson suffered would be redressed by the award of damages.
As for prudential standing, our Court of Appeals
explained its requirements in Freeman v. Corzine, 629 F.3d 146,
154 (3d Cir. 2010) (quotation marks and brackets omitted):
Prudential standing requires that (1) a
litigant assert his or her own legal
interests rather than those of third parties,
(2) courts refrain from adjudicating abstract
questions of wide public significance which
amount to generalized grievances, and (3) a
litigant demonstrate that her interests are
arguably within the zone of interests
intended to be protected by the statute,
rule, or constitutional provision on which
the claim is based.
Anderson sues here to vindicate her own legal interests, she
asserts a specific grievance against AFNI, and her interests in
avoiding harassment via the telephone line installed in her home
are not “so marginally related to or inconsistent with the
purposes implicit in the statute” that they fail to fall within
the TCPA’s zone of interests.
Clarke v. Securities Industry
Ass’n, 479 U.S. 388, 399 (1987).
We thus find that she has
The crux of the parties’ disagreement over standing
concerns its statutory component.
To determine whether a
plaintiff has statutory standing, “we employ the usual tools of
We look first at the text of the
statute and then, if ambiguous, to other indicia of congressional
intent such as the legislative history.”
Graden, 496 F.3d at
Anderson suggests that “the TCPA permits a private cause of
action for any ‘person,’” Pl.’s Resp. at 22, while AFNI responds
that “it is only the telephone subscriber who has standing to
bring an action for statutory damages under the TCPA according to
the legislative history and references to residential telephone
subscribers in the text of the TCPA and subsequent regulations,”
Def.’s MSJ at 27, and that “an unintended recipient of a
telephone call lacks standing to bring suit under the TCPA.”
Under 47 U.S.C. § 227(b)(3),
A person or entity may, if otherwise permitted by the
laws or rules of court of a State, bring in an
appropriate court of that State -(A)
an action based on a violation of this
subsection or the regulations prescribed
under this subsection to enjoin such
an action to recover for actual monetary
loss from such a violation, or to
receive $500 in damages for each such
violation, whichever is greater, or
both such actions.
The plain text of this provision suggests that Congress did not
mean to circumscribe standing beyond its constitutional and
prudential requirements, since it unambiguously grants a cause of
action to any “person or entity.”
AFNI argues in favor of a more restricted grant of
standing, citing Kopff v. World Research Group, LLC, 568 F. Supp.
2d 39 (D.D.C. 2008), Leyse v. Bank of America, Nat’l Assoc., 2010
WL 2382400 (S.D.N.Y. 2010), and Cellco P’ship v. Dealers
Warranty, LLC, 2010 WL 3946713 (D.N.J. 2010).
In Leyse, Judge
Koeltl held that “an unintended and incidental recipient of the
call” is “not a ‘called party’ within the meaning of §
227(b)(1)(B),” 2010 WL 2382400, at *4, and hence “lacks standing
to seek statutory damages,” id. at *6, since “[t]o find otherwise
would mean that when a business calls a person with a prerecorded
message, that business could be liable to any individual who
answers the phone despite the fact that the business only
intended to call one person.”
Id. at *5.
The Court in Kopff
similarly concluded that “where there is a specific, existing
addressee . . . the Court is persuaded that the TCPA cause of
action is his, and not his staff’s.”
568 F.Supp.2d at 42.
in Cellco Judge Wolfson concluded that since
§ 227(b)(1)(A)(iii) provides an exception for
calls made for emergency purposes or made
with the prior express consent of the called
party. . . . the only logical reading of §
227(b)(1)(A)(iii) is one that would require
the party asserting the claim to be the party
to whom the call is directed. Any other
reading, would render the exception for calls
‘made with the prior express consent of the
called party’ a nullity.
2010 WL 3946713, at *9.
Judge Wolfson thus determined that “it
is the intended recipient of the call that has standing to bring
an action for a violation of § 227(b)(1)(A)(iii).”
Id. at *10.
We respectfully disagree with these holdings.
assume that the term “called party” is synonymous with “intended
recipient” (and does not refer to the person who received the
call and hence was “called”), we nonetheless do not believe that
granting standing to persons other than “called parties” does any
violence to the statute itself or to its application in practice.
After all, the exception for calls “made with the prior express
consent of the called party” can operate to protect a defendant
from liability even if someone other than the “called party”
seeks to bring suit.
Here, for instance, AFNI could conceivably
claim that it had the prior express consent of Sampson even
though it is Anderson who brings this case.
concern that seems to underlie the holdings in the Leyse line of
cases -- that unless standing is restricted to “called parties” a
chance recipient of a call made to a phone line in which one has
no personal interest could bring suit under the TCPA -- could
likely be addressed through the requirements of constitutional
standing, under which such a chance recipient would likely not be
able to demonstrate injury in fact, and prudential standing,
under which such a fortuitous callee would probably fall outside
the TCPA’s zone of interests.
Moreover, if the Leyse, Kopff, and Cellco decisions
succeed in addressing two problems -- the imposition of liability
upon a defendant notwithstanding the procurement of consent from
the intended recipient of a call, and the bringing of a suit by
the chance recipient of a call -- their holdings generate other
In cases such as this one -- where the intended
recipient of the defendant’s calls did not express consent to
receiving those calls3 but the defendant accidentally called a
third party -- it would appear under Leyse, Kopff, and Cellco
AFNI has neither alleged nor adduced any evidence
that shows it secured Sampson’s consent to its calls.
that no person would have a cause of action, no matter how
frequently or for how long such calls continued.
the Leyse line of cases, a plaintiff would have to prove that the
defendant intended to call the plaintiff just to demonstrate
Such a question seems poorly suited to a threshold
The fundamental point is that § 227(b)(3) unambiguously
grants standing to any “person or entity,” and this grant does
not contradict the rest of the statute.
Consequently, we need
not consider whether extending standing beyond “called parties”
is workable in practice, and we certainly need not investigate
whether the legislative history of the TCPA supports restricting
standing only to “telephone subscribers,” as AFNI urges.
TCPA makes plain that the only limitations on standing under the
statute are those imposed by constitutional and prudential
Because Anderson has met these requirements, she
has standing to assert her TCPA claims.
Anderson’s Claims Under § 227(b)(1)(A) & (d)(1)(A)
We will next examine Anderson’s claims under 47 U.S.C.
§ 227(b)(1)(A)(iii), which proscribes the making of calls to
telephone numbers assigned to cellular telephone services using
automatic telephone dialing systems or artificial or prerecorded
voices, and § 227(d)(1)(A), which requires telephone calls made
using any automatic telephone dialing system to comply with
certain technical and procedural standards.
AFNI does not
specifically seek summary judgment with respect to the first
claim, and the parties agree that AFNI made no calls to a
cellular telephone associated with Anderson.
Pl.’s Resp. ¶ 30.
Def.’s MSJ ¶ 30;
We will consequently dismiss Anderson’s claim
under § 227(b)(1)(A)(iii).
As for § 227(d)(1)(A), Anderson avers that “[a]lthough
the phrase ‘automatic telephone dialing system’ is defined in the
TCPA and used as an element for certain other types of unlawful
calls, it is simply not an element of Plaintiff’s claim here.”
Pl.’s Resp. at 28 (emphasis in original).
Though this statement
plainly contradicts Paragraph 32(c) of Anderson’s complaint, we
will take it to mean that she has abandoned her claim under §
227(d)(1)(A), and will grant AFNI’s summary judgment motion with
respect to this claim.
Anderson’s Claim under § 227(b)(1)(B)
We are left under the TCPA only with Anderson’s claim
as to § 227(b)(1)(B), to which AFNI has counterposed its second
and third arguments regarding exemptions under the TCPA.
have already pointed out, § 227(b)(1)(B) does not extend to calls
“exempted by rule of order by the Commission under paragraph
Section 227(b)(2)(B) permits the FCC to
by rule or order, exempt from the requirements of
paragraph (1)(B) of this subsection, subject to
such conditions as the Commission may prescribe -(i)
calls that are not made for a commercial
(ii) such classes or categories of calls made
for commercial purposes as the
Commission determines -(I)
will not adversely affect the privacy
rights that this section is intended to
(II) do not include the transmission of any
In 1992, the Commission promulgated rules exempting
from the coverage of § 227(b)(1)(B) any “call or message by, or
on behalf, of a caller . . . (2) That is made for a commercial
purpose but does not include the transmission of any unsolicited
advertisement, [or] (3) To any person with whom the caller has an
established business relationship at the time the call is made.”
FCC, 57 Fed. Reg. 48,333, 48,335 (Oct. 23, 1992) (codified at 47
C.F.R. § 64.1200(c)).
In 2003, the FCC amended § 64.1200 to
exempt any call that “(iii) Is made for a commercial purpose but
does not include or introduce an unsolicited advertisement or
constitute a telephone solicitation, [or] (iv) Is made to any
person with whom the caller has an established business
relationship at the time the call is made.”
FCC, 68 Fed. Reg.
44,144, 44,177 (Jul. 25, 2003) (codified at § 64.1200(a)(2)).
While the FCC has not further amended § 64.1200(a)(2)
since 2003, it commented on the application of this rule both
before and after it issued the 2003 amendments.
In a 1992 Report
and Order, the Commission explained that “all debt collection
circumstances involve a prior or existing business relationship,”
and concluded that “prerecorded debt collection calls would be
exempt from the prohibitions on such calls to residences as: (1)
calls from a party with whom the consumer has an established
business relationship, and (2) commercial calls which do not
adversely affect privacy rights and which do not transmit an
7 FCC Rcd. 8752, 8771, 8773 (Oct.
In a 1995 Memorandum Opinion and Order, the FCC
clarified its 1992 position, explaining that
As we stated in the  Report and Order,
prerecorded debt collection calls are
adequately covered by exemptions adopted in
our rules. Our rules explicitly exempt calls
made either by a party with whom the
subscriber has an established business
relationship or calls that do not transmit an
unsolicited advertisement and are made for a
commercial purpose. Household confuses the
two exemptions. We have specifically noted
that ‘prerecorded debt collection calls [are]
exempt from the prohibitions on [prerecorded]
calls to residences as . . . commercial calls
. . . which do not transmit an unsolicited
advertisement.’ Nevertheless, the Report and
Order explicitly states that subscribers who
sever a business relationship are revoking
consent to any future solicitation. Because
the termination of an established business
relationship is significant only in the
context of solicitation calls, that act of
terminating such a relationship would not
hinder or thwart creditors’ attempts to reach
debtors by telephone.
10 FCC Rcd. 12391, 12400 (Aug. 7, 1995) (ellipses and brackets in
In the 2003 Report and Order revising § 64.1200, the
FCC reiterated that “the act of ‘terminating’ an established
business relationship will not hinder or thwart creditors’
attempts to reach debtors by telephone, to the extent that debt
collection calls constitute neither telephone solicitations nor
include unsolicited advertisements.”
44,158 (Jul. 25, 2003).
FCC, 68 Fed. Reg. 44,144,
And in a 2008 Declaratory Ruling, the
FCC reiterated that “[i]n the 1992 TCPA Order, the Commission
concluded that an express exemption for debt collection calls to
residences was unnecessary as such calls fall within the
exemptions adopted for commercial calls which do not transmit an
unsolicited advertisement and for established business
23 FCC Rcd. 559, 561 (Jan. 4, 2008).
AFNI argues that its calls to the 412 number fall under
both the exemption for commercial calls that do “‘not include or
introduce an unsolicited advertisement or constitute a telephone
solicitation,’” Def.’s MSJ at 30 (quoting 47 C.F.R. §
64.1200(a)(2)(iii)), and the exemption for “calls made to a party
with whom the caller has an established business relationship.”
Id. at 32 (citing § 64.1200(a)(2)(iv)).
Anderson responds that
(1) “the Commission failed to consider or address in any way
unsolicited calls from debt collectors to innocent non-debtors,”
Pl.’s Resp. at 26 (emphasis in original); (2) “the reference to
‘unsolicited advertisements’ has no application in this context,”
id. at 27; and (3) “[i]f the Commission acts outside of its
authority through an impermissible construction of the TCPA, its
rules are not entitled to deference to the courts.”
It may be true that the FCC’s Reports and Memoranda
leave some slight doubt as to whether debt collection calls to
non-debtors are covered by the exemption for established business
While the 1992 Report and Order flat-footedly
states that such calls always “involve a prior or existing
business relationship,” 7 FCC Rcd. at 8771, the Commission’s 1995
Memorandum Opinion and Order seems to suggest that this
relationship may be terminated, that it is of relevance only in
the context of solicitation calls, and that debt collection calls
are principally protected by the exemption for “calls that do not
transmit an unsolicited advertisement and are made for a
10 FCC Rcd. at 12400.
The 2003 Report and
Order similarly focuses on the fact that debt collection calls
“constitute neither telephone solicitations nor include
unsolicited advertisements,” 68 Fed. Reg. at 44,158.
Declaratory Ruling seems to leave some ambiguity as to which
exemption covers debt collection calls, stating merely that such
calls fall within “the exemptions adopted for commercial calls”
and identifying those exemptions.4
23 FCC Rcd. at 561.
Moreover, as Judge Davis observed in Watson v. NCO
Group, Inc., 462 F. Supp. 2d 641, 644 (E.D. Pa. 2006), “the FCC
has not directly addressed the issue of erroneous debt collection
Since it would appear that “an erroneously called non-
debtor has no such existing business relationship” with a debt
collector, it might “follow that the purview of the FCC’s
While the 2008 Declaratory Ruling most naturally
suggests that such calls fall within both exemptions, it could
conceivably mean that such calls merely fall within the
regulatory space spanned by both exemptions.
exemption does not extend to the type of calls made in this
On the other hand, in 1992 the FCC stated, without
qualification, that “all debt collection circumstances involve a
prior or existing business relationship,” 7 FCC Rcd. at 8771
(emphasis added), and it has not chosen in the succeeding years
to modify this categorical pronouncement.
Thus, other courts
have accepted that this statement applies even to calls to nondebtors.
See, e.g., Meadows v. Franklin Collection Serv., Inc.,
2010 WL 2605048, at *6 (N.D. Ala. 2010) (“[T]he FCC has
determined that all debt collection circumstances are excluded
from the TCPA’s coverage.
This finding is broad enough to cover
a debt collection activity that contacts a non-debtor.”); Meadows
v. Franklin Collection Serv., Inc., 2011 WL 479997, at *4 (11th
Cir. 2011) (“[T]he FCC has determined that all debt-collection
circumstances are excluded from the TCPA’s coverage, and thus the
exemptions apply when a debt collector contacts a non-debtor in
an effort to collect a debt.”).
We need not decide today whether the exemption under 47
C.F.R. § 64.1200(a)(2)(iv) respecting established business
relationships applies to debt collection calls to non-debtors,
however, because there is no controversy as to the applicability
of § 64.1200(a)(2)(iii) to such calls.
Calls made purely for the
purpose of collecting a debt clearly constitute calls “made for a
commercial purpose” that “do not include or introduce an
unsolicited advertisement or constitute a telephone
solicitation,”5 § 64.1200(a)(2)(iii), whether they are made to a
debtor or non-debtor.
Thus, we are aware of no court that has
concluded that § 64.1200(a)(2)(iii) does not apply to debt
collection calls to non-debtors.
See, e.g., McBride v.
Affiliated Credit Servs., Inc., 2011 WL 841176, at *3 (D. Or.
2011) (“While I certainly agree that non-debtors lack a prior
business relationship with a debt collector, according to the
Commission debt collection calls are not solicitations or
advertisements and thus fall within a recognized exemption.”);
Santino v. NCO Fin. Sys., 2011 WL 754874, at *6 (W.D.N.Y. 2011)
(“[T]he court concludes that the conduct on the part of defendant
47 U.S.C. § 227(a)(4) defines “telephone
solicitation” to mean “the initiation of a telephone call or
message for the purpose of encouraging the purchase or rental of,
or investment in, property, goods, or services, which is
transmitted to any person, but such term does not include a call
or message (A) to any person with that person’s prior express
invitation or permission, (B) to any person with whom the caller
has an established business relationship, or (C) by a tax exempt
nonprofit organization.” Section 227(a)(5) defines “unsolicited
advertisement” to mean “any material advertising the commercial
availability or quality of any property, goods, or services which
is transmitted to any person without that person’s prior express
invitation or permission, in writing or otherwise.”
complained of in this case fits squarely within the exemption
provided in 47 C.F.R. § 64.1200(a)(2)(iii)).”).
It therefore appears that the exemption codified at 47
C.F.R. § 64.1200(a)(2)(iii) applies to calls to non-debtors made
purely for the purpose of debt collection.
While Anderson seems
to urge us to consider whether this exemption constitutes “an
impermissible construction of the TCPA,” Pl.’s Resp. at 27,
“[j]udicial review of Federal Communications Commission
determinations under the Act is committed directly to the Courts
of Appeal,” Verizon Maryland, Inc., v. Public Service Comm’n of
Maryland, 535 U.S. 635, 651 n.5 (2002) (Souter, J., concurring)
(citing 28 U.S.C. § 2342(1) and 47 U.S.C. § 402(a)), and hence
“this Court may not inquire into the validity of an FCC
AT&T Commc’ns of California, Inc., v. Pacific Bell,
1998 WL 246652, at *2 (N.D. Cal. 1998).
Anderson’s claim under §
227(b)(1)(B) is consequently foreclosed by the exemption at 47
C.F.R. § 64.1200(a)(2)(iii).
Because all of Anderson’s claims
under the TCPA fail, we will grant AFNI’s motion for summary
judgment with respect to these claims and deny Anderson’s motion
for partial summary judgment.
Anderson’s Claims Under The FDCPA
Congress enacted the Fair Debt Collection Practices Act
in 1977, Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir.
2006), to “eliminate abusive debt collection practices by debt
collectors, to insure that those debt collectors who refrain from
using abusive debt collection practices are not competitively
disadvantaged, and to promote consistent State action to protect
consumers against debt collection abuses.”
15 U.S.C. § 1692(e).
Under the FDCPA, “‘consumer’ means any natural person obligated
or allegedly obligated to pay any debt,” § 1692a(3), and “‘debt’
means any obligation or alleged obligation of a consumer to pay
money arising out of a transaction in which the money, property,
insurance, or services which are the subject of the transaction
are primarily for personal, family, or household purposes,
whether or not such obligation has been reduced to judgment.”
The FDCPA imposes limits upon communications made by a
debt collector “for the purpose of acquiring location information
about the consumer,” § 1692b, or with “any person other than the
consumer, his attorney, a consumer reporting agency if otherwise
permitted by law, the creditor, the attorney of the creditor, or
the attorney of the debt collector.”
The FDCPA also
prohibits a debt collector from engaging “in any conduct the
natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt,” § 1692d, and
proscribes the use of “any false, deceptive, or misleading
representation or means in connection with the collection of any
debt,” § 1692e, or the use of “unfair or unconscionable means to
collect or attempt to collect any debt.”
§ 1692f. But §1692k(c)
A debt collector may not be held liable in
any action brought under this subchapter if
the debt collector shows by a preponderance
of evidence that the violation was not
intentional and resulted from a bona fide
error notwithstanding the maintenance of
procedures reasonably adapted to avoid any
Anderson alleges claims under §§ 1692b, c(b), d, e, and
f, alleging AFNI engaged in the following, Pl.’s Compl. ¶ 26:
Disclosing the debt to persons other
than the debtor;
Communicating with persons other than
the debtor on more than one occasion;
Communicating with persons other than
Causing the telephone to ring or
engaging any person in telephone
conversation repeatedly or continuously
with the intent to annoy, abuse, or
harass any person at the called number;
Falsely representing the amount,
character or legal status of the debt;
Engaging in conduct the natural
consequence of which is to harass,
oppress or abuse any person in
connection with the collection of a
Otherwise using false, deceptive or
misleading and unfair or unconscionable
means to collect or attempt to collect a
AFNI contends that it is entitled to summary judgment
for an array of reasons, but we will focus only on the first of
these -- that Anderson “cannot show that the obligations in
question are consumer debts,” Def.’s MSJ at 13 -- because it, by
itself, is sufficient to warrant summary judgment in AFNI’s
It is well-established that “[a] threshold requirement
for application of the FDCPA is that the prohibited practices are
used in an attempt to collect a ‘debt.’”
Zimmerman v. HBO
Affiliate Group, 834 F.2d 1163, 1167 (3d Cir. 1987).
AFNI additionally argues that: (1) “Plaintiff does
not have standing to assert certain causes of action” under §§
1692b, c, e, or f “as she was not the debtor nor were any efforts
made to collect an obligation not owed by her from her,” Def.’s
MSJ at 15; (2) “[t]he frequency with which AFNI placed telephone
calls to the Telephone Number does not violate § 1692d(5) and
AFNI is entitled to summary judgment on this claim,” id. at 17;
and (3) “[t]he alleged violation in this matter was not
intentional and occurred as a result of a bona fide error.” Id.
Pollice v. National Tax Funding, L.P., 225 F.3d 379, 400 (3d Cir.
2000) (same); Gorbaty v. Portfolio Recovery Assocs., LLC, 355
Fed. Appx. 580, 581 (3d Cir. 2009) (same).
Moreover, as our
Court of Appeals explained in HBO, id. at 1168-69,
[T]he type of transaction which may give rise
to a ‘debt’ as defined in the FDCPA, is the
same type of transaction as is dealt with in
all other subchapters of the Consumer Credit
Protection Act, i.e., one involving the offer
or extension of credit to a consumer.
Specifically it is a transaction in which a
consumer is offered or extended the right to
acquire ‘money, property, insurance, or
services’ which are ‘primarily for household
purposes’ and to defer payment.
Consequently, as Judge Weiner has put it, “[b]y its terms . . .
the FDCPA applies to only consumer debt for personal, family or
household purposes and not to commercial debt.”
Martin v. Berke
& Spielfogel, 1995 WL 214453, at *4 (E.D. Pa. 1995).
AFNI argues that “Plaintiff has not produced a single
iota of tangible evidence concerning the underlying purpose of
the debt,” and that therefore “Anderson has produced no evidence
to prove that the delinquent account is a debt as defined by the
Def.’s MSJ at 14.
Anderson responds that “[t]he debts
are all being collected from an individual person,” that “the
addresses associated with the debts on AFNI’s own records are
residential addresses,” and that “Defendant admits that it
treated the debts at issue here assuming they were consumer debts
and subject to the FDCPA.”
Pl.’s Resp. at 15.
Anderson urges that “[s]ince all inferences from this record must
be made in Plaintiff’s favor, as the nonmoving party, there
exists a genuine issue of fact regarding the consumer nature of
the debts at issue in this case.”
Id. at 16.
While it is true that we “must draw all reasonable
inferences in favor of the nonmoving party” in ruling on a motion
for summary judgment, Reeves, 530 U.S. at 150, it is also true
that “[t]he mere existence of a scintilla of evidence in support
of the plaintiff’s position will be insufficient; there must be
evidence on which the jury could reasonably find for the
Anderson, 477 U.S. at 252.
Anderson asks us to
infer that the debts here were incurred “primarily for personal,
family, or household purposes,” § 1692a(5), solely because (1)
Sampson is an individual, (2) the addresses associated with the
debts at issue are “residential,” and (3) AFNI treated these
debts as if they were consumer debts.
This we cannot do.
In the first place, individuals may -- and often do -carry on commercial activities from residential settings.
e.g., Lang v. Winston & Winston, P.C., 2001 WL 641122, at *5 n.1
(N.D. Ill. 2001) (distinguishing broader class of “individuals
who made purchases in their own name and used a residential
address” from narrower group of individuals who “made the
purchase primarily for personal, family or household purposes”).
AFNI may have in an abundance of caution treated Sampson’s
obligations as consumer debts to protect itself from FDCPA
In any case, a debt collector’s treatment of an
obligation is irrelevant to an inquiry regarding the nature of
that obligation itself.
See, e.g., Slenk v. Transworld Systems,
Inc., 236 F.3d 1072, 1076 (9th Cir. 2001) (“We, too, refuse to
ignore Congress’s intent by defining a consumer debt in
accordance with the actions of the debt collector, rather than
the true nature of the debt.”)
No reasonable jury could find,
based on the evidence Anderson has adduced, that the obligations
at issue here were consumer debts.
A residential address and an
individual debtor -- on inferences alone -- do not a consumer
debt make, even applying the grace we are obliged to extend.
short, Anderson's proffers regarding the nature of Sampson's debt
amount to nothing more than conjecture or speculation.
AFNI has shown that Anderson “has failed to establish
one or more essential elements of [her] case” under the FDCPA,
Connection Training Servs., 358 Fed. Appx. at 318, and Anderson
has not “come forward with specific facts indicating a genuine
issue for trial.”
We will consequently grant AFNI’s motion
for summary judgment as to Anderson’s FDCPA claims.
Anderson’s Claim Under Pennsylvania Law
Our jurisdiction over Anderson’s Pennsylvania state law
claims rests on our supplemental jurisdiction, which we may
exercise only “as long as there is a federal claim which gives
the court jurisdiction.”
Ambromovage v. United Mine Workers of
America, 726 F.2d 972, 989 n.48 (3d Cir. 1984).
AFNI’s motion for summary judgment with respect to all of
Anderson’s federal claims, we decline to exercise our
supplemental jurisdiction over her remaining state claim.
result, we will dismiss the third claim of her complaint without
prejudice pursuant to 28 U.S.C. § 1367(c)(3).
BY THE COURT:
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