District Court (Pa.) Holds Fannie Mae Vicariously Liable for the Alleged TCPA Violations of its Servicer

In Hartley-Culp v. Green Tree Servicing, LLC, — F.Supp.3d —-, 2014 WL 5088230 (M.D.Pa. 2014), Judge Munley held that the TCPA imposed vicarious liability on Fannie Mae for the alleged TCPA violations of its servicer. The facts were as follows:

Beginning on August 29, 2013, plaintiff received at least twenty-six (26) phone calls from Defendant Resolve Solution Services Corporation (hereinafter “Resolve”). (Id. at 4). The calls conveyed a pre-recorded message addressed to a person named Lee Culp, in which the speaker stated, “Resolve is calling on behalf of Freddie Mac regarding your Green Tree Servicing LLC mortgage loan …” (Id.) Plaintiff informed defendants that they were placing calls meant for Lee Culp to her number, but the calls con-tinued. (Id. at 5). At no time did plaintiff provide her cellular telephone number or any other personal in-formation to any of the defendants, and she has never been a customer of Green Tree Servicing LLC (hereinafter “Green Tree”). Plaintiff did not consent to any of the defendants calling her. (Id.)

  The District Court found that the TCPA could impose vicarious liability on Fannie Mae.

With respect to this section of the TCPA, the FCC has ruled that “a creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.” In re Rules Implementing the Tel. Consumer Prot. Act of 1991 (hereinafter “FCC Ruling”), 23 FCC Rcd 559, 565 (F.C.C.2007). ¶ In Mais, the court determined that it had jurisdiction to review and reject the FCC’s ruling. No other federal district court, besides the Mais court, has concluded that district courts have jurisdiction to review FCC rulings, and with good reason. See Chavez v. Advantage Group, 959 F.Supp.2d 1279 (D.Colo.2013). Congress has granted federal courts of appeals “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of … all final orders of the Federal Communications Commission made reviewable by section 402(a) of Title 47.” 28 U.S.C. § 2342(1). In the process, the Mais court essentially ignored this provision, construing the jurisdictional grant so narrowly as to render it meaningless, before reviewing and rejecting the FCC ruling. See Mais, 944 F. Supp 2d at 1235–1239. The Mais court also dismissed Supreme Court precedent stating that “exclusive jurisdiction for review of final FCC orders … lies in the Court of Appeals.” FCC v. ITT World Comms., Inc., 466 U.S. 463 (1984). This court will instead follow these binding precedents, and decline Fannie Mae’s invitation to follow the Mais court’s reasoning. ¶ Fannie Mae’s Reply Brief (Doc. 37) attempts to reframe the argument to say that Fannie Mae cannot be held directly liable under the TCPA. Under the plain language of the FCC ruling, however, this is incorrect. The ruling states that “[c]alls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.” FCC Ruling at 565. The FCC clearly ruled that the creditor is placed “in the shoes” of the caller for purposes of liability under the TCPA’s autodialing provisions. ¶ Further, as Fannie Mae concedes, numerous other courts have held that § 227(b)(1)(A) does impose liability upon a showing of vicarious liability as well. See, e.g., In re Jiffy Lube Int’l, Inc., Text Spam Litig., 847 F.Supp.2d 1253, 1257 (S.D.Cal.2012) (citing “the rule of statutory construction that makes explicit vicarious liability unnecessary,” in holding that “congressional tort actions [including the TCPA] implicitly include the doctrine of vicarious liability”); Accounting Outsourcing, LLC v. Verizon Wireless Pers. Commc’ns., L.P., 329 F.Supp.2d 789 (M.D.La.2004) (same); Thomas v. Taco Bell Corp., 879 F.Supp.2d 1079, 1084 (C .D.Cal.2012) (“Absent a clear expression of Congressional intent to apply another standard, the Court must presume that Congress intended to apply the traditional standards of vicarious liability….”). The Court sees no reason not to adopt the same conclusion here. ¶ Therefore, we hold that the TCPA can impose liability directly or vicariously upon any person or entity on whose behalf a third party places a call in violation of § 227(b)(1)(A).