District Court (Fla.) Knows It When It Sees It; Finds No Obscenity or Profanity in Debt Collector’s Collection Activities

In Kelemen v. Professional Collection Systems, 2011 WL 31396 (M.D.Fla.), Judge Antoon ruled on what constitutes ‘obscene’ or ‘profane’ under the FDCPA ‘s section 1692d(2) (violation of the FDCPA for a debt collector to use “obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.”). Harkening back to Justice Stewart’s concurrence in Jacobellis v. Ohio that Justice Stewart knew it when he saw it, Judge Antoon found that he did not see it, explaining:

Plaintiffs assert that PCS violated § 1692d(2) when a PCS employee told Mrs. Kelemen “pay your damn bills.” (Pls.’ Resp. at 12). Plaintiffs do not argue that this phrase could be categorized as obscene, but they do assert that the language is profane or at least akin to profanity. . . “[T]he word ‘profane’ has been interpreted in numerous instances by state and federal courts. These courts have invariably held the word to mean any words importing an imprecation of divine vengeance or implying divine condemnation or irreverence to-ward God or holy things.” State v. Authelet, 120 R.I. 42, 385 A.2d 642, 644 (R.I.1978) (citing cases). Furthermore, “[p]rofanity is distinguished from mere vulgarity and obscenity by the additional element of irreverence toward or mistreatment of something sacred.” Black’s Law Dictionary 1329 (9th ed.2009). Clearly, the statement “pay your damn bills” does not fall within the definition of profanity. . . Additionally, although the statement is certainly rude, it is not “similar in [its] offensiveness to obscene or profane remarks.” Jeter, 760 F.2d at 1178. The PCS employee did not utilize any racial or ethnic slurs or engage in any name-calling, and when the language in this case is compared to the language that other courts have found to be abusive or harassing, it is evident that “pay your damn bills” does not rise to the level of offensiveness required by Jeter. Cf. United States v. Cent. Adjustment Bureau, Inc., 667 F.Supp. 370, 376 (N.D.Tex.1986) (finding language such as “god-damn liar” and “low-down son of a bitch,” and the statement “the judge doesn’t give a fuck about your complaint” to be violative of § 1692d(2)); Horkey v. J.V.D.B. & Assocs., Inc., 179 F.Supp.2d 861, 868 (N.D.Ill.2002) (“ ‘[T]ell Amanda to quit being such a fucking bitch’ violates Section 1692d(2).”). Accordingly, Plaintiffs’ claim that PCS violated § 1692d(2) fails, and PCS is entitled to summary judgment on this claim.