3rd Circuit Says TCPA Violation with Respect to Pre-Recorded Messages Did Not Automatically Create FDCPA Liability

In Gomez v. Oxford Law, LLC,  2016 WL 4174321, at *2–3 (3rd Cir. 2016), the Court of Appeals for the Third Circuit held that a TCPA violation did not automatically constitute an FDCPA violation.

Specifically, Gomez argues that Oxford Law violated this provision not by making a threat to take any action that cannot legally be taken, but rather by actually taking an illegal action. That alleged illegal action, she asserts, was Oxford Law’s violation of a regulation that was promulgated by the Federal Communications Commission (FCC) to implement § 227(d)(3)(A) of the TCPA and that requires debt collectors to identify the entity or individual calling “[a]t the beginning of the [prerecorded] message.” 47 C.F.R. § 64.1200(b)(1). In response, Oxford Law disputes Gomez’s broad construction of § 1692e(5), contending that its prerecorded message cannot be understood as “a threat to take action” under the FDCPA and that in any event Oxford Law did not violate the TCPA but rather comported with FCC guidance clarifying that debt collectors need not identify themselves where such disclosure would conflict with their other obligations under state and federal law. In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 20 F.C.C. Rcd. 3788, 3788, 3802-03 (2005).  Interesting though these questions are, we conclude that the circumstances of this case do not require us to resolve whether certain illegal acts may trigger the prohibition set forth in § 1692e(5) of the FDCPA or whether Oxford Law’s prerecorded message violated the technical provisions of the TCPA. For although Gomez argues in favor of an expansive reading of § 1692e(5)—which notes merely one example in a non-exhaustive list of prohibited actions—she is unable to establish that the alleged violation is “capable of influencing the decision of the least sophisticated debtor” in any respect. Jensen v. Pressler & Pressler, 791 F.3d 413, 421 (3d Cir. 2015); see also McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 F.3d 240, 246 (3d Cir. 2014) (debt collectors’ representations to debtors must be analyzed “from the perspective of the least sophisticated debtor”). Indeed, Gomez does not explain how the TCPA violation she has alleged qualifies as a “false, deceptive, or misleading representation” prohibited under § 1692e or, more broadly, as an “abusive, deceptive, and unfair debt collection practice[ ]” that the FDCPA is designed to remedy, 15 U.S.C. § 1692(a). See Jensen, 791 F.3d at 421 (“[I]f a statement would not mislead the unsophisticated consumer, it does not violate the [Act]—even if it is false in some technical sense.” (quoting Hahn v. Triumph Partnerships LLC, 557 F.3d 755, 758 (7th Cir. 2009)); Campuzano-Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 300 (3d Cir. 2008) (rejecting § 1692e claim where challenged settlement offers were not deceptive). It follows that the alleged TCPA violation cannot be construed as a false or legally baseless “threat to take … action” as required to trigger § 1692e(5). See Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355, 361 (3d Cir. 2015) (reiterating, in an FDCPA action, the “common-sense” default rule that plaintiffs bear the burden of proving their claims, whereas the debt collector carries the burden of establishing any affirmative defenses).  Because the alleged TCPA violation identified by Gomez does not qualify as conduct for which a debtor could recover under § 1692e or its subsections, we will affirm the judgment of the District Court.