District Court (Cal.) Finds TCPA Class Action Adequately Pleaded against Debt Collector by Unintended Recipient of Auto-Dialed Calls to Cell Phone

In Iniguez v. The CBE Group, — F.Supp.2d —-, 2013 WL 4780785 (E.D.Cal. 2013), Judge Mendez addressed the propriety of a class-action lawsuit brought against a debt collection agency under TCPA by an “unintended recipient” of collection calls.  The lawsuit was based on Plaintiff’s allegations that Defendant placed numerous calls to her cell phone seeking to collect a debt owed by a third party to Dish Network, LLC. Plaintiff claimed that she informed Defendant that the third party no longer controlled the cellular telephone number that Defendant was calling but the calls continued unabated. Plaintiff alleged violations of the Telephone Consumer Protection Act (“TCPA”) on behalf of a class of similarly situated individuals. Judge Mendez found the claim properly pleaded. Judge Mendez rejected the Defendant’s argument that the TCPA does not apply to debt collectors.

Defendant first argues that the TCPA does not apply to the telephone calls it makes because it is a debt collector and the TCPA does not apply to debt collectors. To support its position, Defendant cites extensively to the legislative history of the TCPA. Plaintiff responds that the legislative history is irrelevant absent any ambiguity in the statutory text of the TCPA. ¶  The first fundamental canon of statutory interpretation requires courts to accept the plain meaning of a statute absent any ambiguity in the text.   Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461–62 (2002). “When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’ “ Id. (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)).  ¶  In this case, the TCPA is clear that it applies to any call made to a cellular telephone. There is no exception for debt collectors in the statute, nor does the statute permit any regulatory agency to make exceptions to the sections applicable to cellular numbers. In accordance with this position, the federal regulations applicable to the TCPA do not contain a debt collector exception, or any exceptions related to calls made to cellular phones. 47 C.F.R. § 64 .1200. The TCPA therefore applies to debt collectors and they may be liable for offending calls. Blair v. CBE Group Inc., No. 13–CV–134–MMA(WVG), 2013 WL 2029155, 3, Slip Copy (S.D.Cal. May 13, 2013); see also HurreyMayer v. Wells Fargo Home Mortg., Inc., No. 09cv1470 DMS (NLS), 2009 WL 3647632, at *3–4 (S.D.Cal. Nov. 4, 2009).

Judge Mendez found that Plaintiff adequately pleaded use of an ATDS.

Defendant argues that Plaintiff’s TCPA claims are insufficient because her allegations related to Defendant’s use of an automatic telephone dialing system are vague and conclusory. Defendant also contends that debt collection calls are not made using such systems because the debt collector is obviously trying to reach a particular person, not make random calls as required by the TCPA. Plaintiff responds that she specifically alleges that the system used by Defendant falls under the TCPA’s definition of automatic telephone dialing system.  ¶  Plaintiff’s complaint alleges both that Defendant used an automatic telephone dialing system and that Defendant’s system utilized an artificial voice. Compl. ¶ 17. Either allegation is sufficient on its own to support Plaintiff’s claims. The allegation that Defendant’s system utilized an artificial voice is based on Plaintiff’s own experience when she answered Defendant’s phone calls, and it is therefore not vague or conclusory. Additionally, whether or not Defendant’s system randomly generated Plaintiff’s number is not determinative because the TCPA only requires that the system have that capability, not that it was actually utilized with respect to a particular phone call. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009). Plaintiff’s allegations with respect to Defendant’s use of an automatic telephone dialing system and an artificial voice are accordingly sufficient and Defendant’s motion to dismiss on this ground is denied.

Finally, Judge Mendez found that the Plaintiff was not required to plead that the Plaintiff incurred actual injury or charges for the call.

Defendant finally argues that Plaintiff’s TCPA claims fail because she does not allege injury, i.e., that she was forced to pay for the allegedly offending phone calls. Plaintiff responds that such an allegation is not required to state a prima facie TCPA claim. ¶  The plain text of the TCPA supports Plaintiff’s position. The applicable statutory provision prohibits calls “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). Since this section is written in the disjunctive, a call is prohibited if it is made to a cellular number or if it is made such that the receiving party is charged for the call. Based on the plain language of the statute, Plaintiff’s allegations are sufficient without an allegation that she was charged for Defendant’s calls to her cellular telephone. Blair v. CBE Group Inc., No. 13–CV–134–MMA(WVG), 2013 WL 2029155, 4, Slip Copy (S.D.Cal. May 13, 2013). Defendant’s motion to dismiss on this ground is therefore denied.