Gager v. Dell Financial Services, LLC

Filing 30

MEMORANDUM AND OPINION - For the reasons set forth in this memorandum, Defendant's Motion to Dismiss (Doc. 9) will be Granted.Signed by Honorable Robert D. Mariani on 5/29/12. (jfg)

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ASHLEY GAGER

Plaintiff

3:11-cY-2115

Y.

(JUDGE MARIANI)
DELL FINANCIAL SERVICES, LLC
Defendant
MEMORANDUM OPINION
This matter is before the Court upon Defendant Dell Financial Services, LLC's
("Defendant") Motion to Dismiss Plaintiff Ashley Gager's ("Plaintiff") Amended Complaint
(Doc. 7), removed to this Court on November 11, 2011 (Doc. 1) from the Court of Common
Pleas, Wayne County, Pennsylvania. Plaintiff alleges multiple violations of the Telephone
Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"), and seeks treble damages under the
statute.
BACKGROUND
In or around December 2007, Plaintiff secured a line of credit with Defendant to
purchase computer equipment (PI.'s Am. Compl. at 1f 10, ECF Dkt. 7.) Plaintiffs Amended
Complaint alleges that Plaintiff (1) has a mobile telephone number that she has possessed
for several years, (2) she has used this number exclusively, and (3) she "does not believe
that it was ever ported from a wireline service." (PI.'s Am. Compl. at 1f 8.) Furthermore,

Plaintiff avers that she is charged for incoming calls to her mobile telephone. (PI.'s Am.

Compl. at ~ 9.)
At the time that Plaintiff completed her credit application with Defendant, she filled­
out an internet forn1 that asked applicants to provide a "house phone" number. (PI.'s Am.
CompI. at 1l11.) Plaintiff did not have a hard-wired telephone line, and thus provided her
mobile telephone number in its place. (PI.'s Am. CompI. at 1l11.) Plaintiff became
delinquent in her payments to Defendant, and Defendant began calling Plaintiffs mobile
phone with prerecorded messages regarding the debt. Sometime during December 2010,
Plaintiff sent Defendant a letter asking Defendant to cease calling her. (PI.'s Am. Compl. at
1l12.) A copy of that letter, attached to Plaintiffs Amended Complaint, fails to inform
Defendant that the number at which they are contacting Plaintiff was connected to a mobile
device. (See PI.'s Am. Compl., Exh. A, ECF Dkt. 7-1.) Defendant received this letter on
December 27, 2010. (PI.'s Am. Compl. at 1l13.) Plaintiff asserts that this "letter revoked
her consent that she had previously given to the Defendant to place calls to her cellular
telephone number." (PI.'s Am. Compl. at 1l14.) Plaintiff maintains, however, that Defendant
continued to place an additional "forty calls to her cellular phone in less than three weeks."
(PI.'s Am. CompI. at 1l14.)

STANDARD
This matter is presented to the district court as a motion to dismiss. In light of the
Supreme Court's decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 433 (2007), and

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Ashcroft v.lqba/, 129 S.Ct. 1937 (2009), the Middle District of Pennsylvania has adopted

the following standard by which to treat motions to dismiss. "[T]o survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true to 'state aclaim
that relief is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at
570). In Iqbal, the Court emphasized that "only a complaint that states a plausible claim for
relief survives a motion to dismiss." Id. at 1950. Furthermore, "[d]etermining whether a
complaint states a plausible claim for relief will ... be a context~specific task that requires
the reviewing court to draw on its judicial experience and common sense." Id. (citation
omitted); McTernan v. City of York, 577 F.3d 521,530 (3d Cir. 2009).
District courts confronted by a motion to dismiss should engage in a two~step
analysis. First, the distnct court should accept all well~pleaded facts as true, but may reject
mere legal conclusions. Second, the district court should then determine whether the facts,
as asserted, establish a "plausible claim for relief." Iqbal, 129 S.Ct. at 1950. Thus, a
complaint must "show" an entitlement to relief with facts, as a mere allegation that a plaintiff
is entitled to relief is insufficient to withstand a motion to dismiss. See Philips v. Co. of

Allegheny, 515 F.3d 224,

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(3d Cir. 2008). As the Supreme Court instructed in Iqbal,

"[w]here the well~pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the
pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949. This "plausibility" determination will
be "a context~specific task that requires the reviewing court to draw on its judicial

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experience and common sense." Id.; see a/so McTernan, Fowler v. UPMC Shadyside, 578
F.3d 203,210-11 (3d Cir. 2009).
DISCUSSION
Defendant's Motion to Dismiss (Doc. 9) is predicated upon several questions of law,
which, in light of the allegations of Plaintiffs Amended Complaint, which must be accepted
as true for purposes of determining the legal sufficiency thereof, renders the matter ripe for
disposition. Accordingly, the Court's analysis proceeds as a matter of statutory
interpretation.
'The TCPA regulates the use of telephones to contact consumers." Adamcik v.

Credit Control Services, Inc., No. 10-399,2011 WL 6793976, at *3 (W.O. Tex. Dec. 19,
2011). Under the pertinent provisions of the TCPA, it is unlawful:
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 artificial prerecorded voice...(iii) to any telephone
number assigned to a ... cellular telephone service ... or any service for
which the called party is charged for the call.
47 U.S.C. § 227(b)(1)(A)(iii).
The express language of the statute instructs that calls to a cellular phone are
permissible in the case of an emergency or if the call is "made with the prior express
consent of the called party...." Id. See Adamcik, 2011 WL 6793976, at *3. Furthermore,
an "automatic telephone dialing system" (hereinafter "autodialer") is any equipment which
has the ability: "(A) to store or produce telephone numbers to be called, using a random or

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sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1 )(A)-(B).

In the present matter, the prerecorded telephone calls made to Plaintiffs mobile device
were made from an autodialer. Plaintiff admits in her Amended Complaint that she provided
consent for Defendant to call her mobile phone when she listed that number on a credit
application (see Pl.'s Am. Compl. at 1f 14); thus, the question of consent to contact is
undisputed, leaving Plaintiffs claim to turn on whether, as a matter of law, she was able to
revoke such consent with her December 2010 letter to Defendant.
The Federal Communications Commission's Declaratory Ruling In the Matter of
Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991,
Request of ACA International for Clarification and Declaratory Ruling, 23 FCC Rcd. 559,

564-65 (2008) (hereinafter, u2008 Declaratory Judgment"), sets forth certain exceptions to
the broad mandate of the TCPA, and provides official guidance on its implementation. See
47 U.S.C. § 227(b)(2)(providing authorization to the FCC to enact limited exemptions to the
TCPA). The FCC held, in pertinent part:
Because we find that autodialed and prerecorded message calls to wireless
numbers provided by the called party in connection with an existing debt are
made with the "prior express consent" of the called party, we clarify that such
calls are permissible. We conclude that the provision of a cell phone number
to a creditor, e.g., as part of a credit application, reasonably evidences prior
express consent by the cell phone subscriber to be contacted at that number
regarding the debt.
2008 Declaratory Judgment, at *564.

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The 2008 Declaratory Judgment acknowledges an earlier 1992 Order in which the

FCC determined that "persons who knowingly release their phone numbers have in effect
given their invitation or permission to be called at the number which they have given, absent
instructions to the contrary." See Rules and Regulations Implementing the Telephone
Consumer Protection Act of 1991,7 FCC Rcd. 8752,8769 (1992) (emphasis added) (,,1992
TCPA Order"). It is this "absent instructions to the contrary" language upon which Plaintiff
forges her argument that unilateral withdrawal of consent to be contacted, following the
consummation of her credit agreement with Defendant, is authorized under the TCPA. The
question of revocation requires a review of the language of the TCPA and its implementing
regulations. The TCPA itself does not address whether prior express consent, once given,
may be revoked. The FCC regulations are also silent on the availability of revocation,
although the 1992 regulation containing the "absent instructions to the contrary" language is
asserted by Plaintiff as a grant of authority to revoke prior express consent.
Plaintiff provides several out of circuit, district court cases for the proposition that
withdrawal of consent to contact after the consummation of a credit contract is permissible
under the TCPA; nevertheless, these cases discuss only the methods of revocation (written
notice versus sufficiency of oral revocation), and do not address the propriety of revocation
itself or when such revocation may be permitted. See, e.g., Gutierrez v. Barc/ays Group,
2011 WL 579238 (S.D. Cal. 2011); Adamcik v. Credit Control Services, Inc., 2011 WL
6793976 (W.o. Tex. 2011); Starkey v. Firstsource Advantage, LLC, 2010 WL 2541756

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(W.D.N.Y. 2010); Cunningham v. Credit Mgmt., L.P., 2010 WL 3791104 (N.D. Tex. 2010);

Moore v. Firstsource Advabtage, LLC, 2011 WL 4345703 (W.D.N.Y. 2011); Moltz v.
Firstsource Advantage, LLC, 2011 WL 3360010 (W.D.N.Y. 2011). Every one of these
cases, however, is distinguishable from the present matter in that they (1) concerned
circumstances requiring the application of the TCPA in conjunction with the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and as a result, infused
FDCPA mandales into the TCPA, or (2) assume, without support, that a revocation of
consent to contact under the TCPA is authorized by the statute and its implementing
regulations. In those cases initiated under both the TCPA and FDCPA, where the
defendants were "debt collectors" under the FDCPA, the courts' analyses and ultimate
determinations have no application here.
The cases cited by Plaintiff and Defendant fall into two broad categories, generally
represented by the holdings of Starkey, supra, and Adamcik, supra. In Starkey, the plaintiff
provided her cellular telephone number to a cable company in connection with the
establishment of an account. Following the cable company's failure to collect a debt from
the plaintiff, the cable company turned the file over to a third-party collection agency. After
receiving many prerecorded calls from the collection agency, the plaintiff contacted a live
operator and orally withdrew consent to be called on that number. The plaintiff sued the
debt collector for violations of both the TCPA and the FDCPA. The court analyzed both
statutes and found that "debt collection efforts are governed by the FDCPA," thus requiring

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any request to cease collection calls under the TCPA to be in writing so as to comport with

the withdrawal of consent provisions of the FDCPA.1 Starkey, 2010 WL 2541756, at *6.
The Starkey court essentially infused the written withdrawal requirement of the FDCPA into
the TCPA because the debt collector in that case was subject to both statutes.
In the instant matter, Defendant does not qualify as a "debt collector" under the
FDCPA, thus rendering the Starkey line irrelevant and inapposite. "The FDCPA's provisions
generally apply only to debt collectors." Federal Trade Commission v. Check Investors,
Inc., 502 F.3d 159, 172 (3d CiL 2007)(quoting Pollice v. Nat. Tax Funding, L.P., 225 F.3d
379,403 (3d Cir. 2000)); Pettit v. Retrieval Masters Creditors Bureau, Inc., 211 F.3d 1057,
1059 (7th Cir. 2000)("Creditors who collect in their own name and whose principal business
is not debt collection ... are not subject to the [FDCPA] .... Because creditors are
generally presumed to restrain their abusive collection practices out of a desire to protect
their corporate goodwill, their debt collection activities are not subject to the [FDCPA] unless
they collect under a name other than their own."). "Creditors-as opposed to debt
collectors-generally are not subject to the FDCPA." Id. (citing Pollice, 225 F.3d at 403). "A
'debt collector' is broadly defined as one who attempts to collect debts 'owed or due or
asserted to be owed or due to another.'" Id. (quoting 15 U.S.C. § 1692a(6)). A "creditor,"
on the other hand, is one who "offers or extends to offer credit creating a debt or to whom a

1 The FDCPA withdrawal of consent provision reads, in pertinent part: "If a consumer notifies a debt collector in
writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further
communication with the consumer, the debt collector shall not communicate further with the consumer with respect
to such debt ...." 15 U.S.C. § 1692c(c).

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debt is owed." Id. (quoting 15 U.S.C. § 1692a(4)). One cannot be both a "creditor" and a

"debt collector" as defined under the FDCPA because the terms are mutually exclusive.

See Id. at 173. Defendant extended a line of credit to Plaintiff in order for Plaintiff to
purchase products from Defendant's parent corporation, and the debt originated in the
transaction between Plaintiff and Defendant; thus, for purposes of the FDCPA, Defendant is
not a debt collector, but is a creditor, and the provisions of the FDCPA are inapplicable to its
collection efforts.
In the line of cases following the court's reasoning in Starkey, various district courts
have read the written notice requirement governing the withdrawal of consent to contact
under the FDCPA into the TCPA. In fact, these courts have construed the TCPA to include
a withdrawal of consent provision that cannot be found in the text of the statute. See, e.g.,

Cunningham, 2010 WL 3791104 (N.D. Tex. 2010)(following Starkey, withdrawal of consent
to contact under TCPA must be in writing to comport with provisions of FDCPA); Moore,
2011 WL 4345703 (W.D.N.Y. 2011)(following Starkey, withdrawal of consent to contact
under TCPA must be in writing to comport with provisions of FDCPA); and Moltz, 2011 WL
3360010 (W.D.N.Y. 2011 (following Starkey, FDCPA found to override TCPA in debt
collection matters, thus requiring written withdrawal of consent to be contacted). Each of
those cases, like Starkey, is distinguishable from the matter sub judice because the litigants
assert claims under the FDCPA against "debt collectors" as that term is defined under the
FDCPA. Here, Defendant is not a "debt collector," and none of the provisions governing

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debt collection under the FDCPA are applicable. Plaintiff is left only with the protections of

the TCPA as that individual statute is written.
In Adamcik, supra, the Western District of Texas criticized the Starkey line of cases
and held that the TCPA and the FDCPA are two independent statutes whose provisions
should not be read into one another. See Adamcik, 2011 WL 6793976, at *6 ("80th are duly
enacted federal laws, and neither includes any proviSion subordinating one to the other.").
The court further found that because the 'TCPA is silent on how consent to receive
autodialer calls can be revoked ... for a host of reasons under the common law and canons
of statutory construction ... oral revocation should be effective." Id. at *3. Without
thereafter providing any significant explanation, the court found what can only be described
as an implicit right to revoke consent, and rejected the need for such revocation to be in
writing pursuant to the mandates of the FDCPA. While Adamcik repudiated the Starkey
court's writing of FDCPA requirements into the TCPA, it still found, without any statutory or
FCC support, that revocation of consent was possible, and need only be given orally, after
such consent was given during the formation of a debt contract.
In Gutierrez, 2011 WL 579238 (S.D. Cal. Feb. 9, 2011), the Southern District of
California also broke with Starkey, and held that oral revocation of consent to contact under
the TCPA was sufficient. Id. at *3-4. Gutierrez did not involve the FDCPA, and the court
found that the facts buttressing the Starkey decision were factually distinct from those
presented in a case involving the TCPA alone. Id. at *3. Specifically, the court noted that

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"Starkey addressed the separate question of whether written notice is required to cease

debt collection calls, particularly under the [FDCPA]." Id. The Gutierrez court, however, still
recognized that revocation of consent was still possible after the consummation of a credit
contract. Id. at *4.
We do not find the statutory construction and reasoning in Starkey, Adamcik, or
Gutierrez, to be persuasive, and expressly decline to hold that the TCPA, or any FCC

regulation or advisory opinion construing the statute, contains any provision permitting this
Court to find post-formation revocation of consent authorized under the provisions of the
TCPA. While the Starkey line might have applicability if Defendant were subject to the
FDCPA, under the prevailing law of the Third Circuit, Defendant is not a "debt collector" as
defined by that statute; thus, the right to withdraw consent provisions enacted under the
FDCPA do not apply to Defendant and we do not find any TCPA provision allowing
revocation, so that Plaintiff's claims that her rights were violated under the TCPA, assuming
all of the facts in her Amended Complaint as true, do not state a cause of action.
Furthermore, although the 1992 TCPA Order permits prerecorded calls to mobile
telephones if a debtor consents to such calls, the "absent instructions to the contrary"
language does not explicitly or implicitly state that a later revocation is permitted. See 1992
TCPA Order, at 8769. A plain reading of the regulation indicates that such "instructions to

the contrary" are to be provided at the time a person "knowingly release[s]" her telephone

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number, thereby giving her "invitation or permission to be called" at that number. 2 See 1992
TCPA Order, at 8769. For instance, if a debtor listed her mobile telephone number on an
application for credit, and at the time she submitted the application she instructed the
creditor not to call her on that number for debt collection purposes, it is hardly a question
that the debtor has issued "instructions to the contrary," so that consent to contact on that
mobile number is absent. The FCC's use of the phrase "absent instructions to the contrary"
does not provide a basis for this Court to find such instructions as providing a method of
revocation.
Finally, "the FCC has determined that all debt-collection circumstances are excluded
from the TCPA's coverage." Osorio v. State Farm Bank, No. 11-61880,2012 WL 1671780,
at *4 (S.D. Fla. May 10, 2012). Under the TCPA, "as clearly stated in the December 28,
2007 FCC Declaratory Ruling, calls regarding debt collection or to recover payment are not
subject to the TCPA's separate restrictions on 'telephone solicitations.'" Id. at *5. The FCC
has "unequivocally stated" that "calls solely for the purpose of debt collection are not
telephone solicitations and do not constitute telemarketing" and "calls regarding debt
collection ... are not subject to the TCPA's separate restrictions on 'telephone
solicitations.'" Meadows v. Franklin Collection Servs., Inc., 414 F. App'x 230,236 (11th Cir.
2011 ).
"We emphasize that under the prohibitions set forth in § 227(b)(l) and [47 C.F.R.] §§ 64.1200(a)-(d) of our rules,
only calls placed by automatic telephone dialing systems or using an artificial or prerecorded voice are prohibited.
Ifa call is otherwise subject to the prohibitions of §64.1200, persons who knowingly release their phone numbers
have in effect given their invitation or permission to be called at the number which they have given, absent
instructions to the contrary." 1992 TCPA Order, at 8769.

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Accordingly, when viewed through the prism of Iqbal and Twombly, and taking all
allegations set forth in Plaintiffs Amended Complaint as true, Plaintiff fails to state a
cognizable cause of action, and a dismissal of her claim is required.
CONCLUSION

For the reasons set forth in this memorandum, Defendant's Motion to Dismiss (Doc.
9) will be Granted.

DATE: May 29,2012
Robe
arlan!
United States District Judge

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