In Starkey v. Firstsource Advantage, LLC, 2010 WL 2541756 (W.D.N.Y.,2010), Judge Schroeder found no violation of the TCPA or FDCPA for automated calls placed to a debtor. Judge Schroeder explained:
On December 20, 1991, Congress enacted the Telephone Consumer Protection Act (TCPA), as codified in section 227 of the Communications Act of 1934, as amended, in an effort to address a growing number of telephone marketing calls and certain telemarketing practices Congress found to be an invasion of consumer privacy.” FCC 07-232 Declaratory Ruling, p. 1 (Dkt.# 33-10). The TCPA regulates the use of automated telephone equipment and more specifically, Title 47, United States Code, Section 227(b)(1)(A) prohibits the use of any automatic telephone dialing system to call any telephone number assigned to a cellular telephone service absent an emergency purpose or the “prior express consent of the called party.” Title 47, U.S.C. § 227(b)(1)(A)(iii). In a December 28, 2007, Declaratory Ruling, the Federal Communications Commission, the agency responsible for enforcing the TCPA, sought to clarify that “autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the ‘prior express consent’ of the called party.” FCC 07-232 Declaratory Ruling, p. 1. ¶ In its December 28, 2007 Declaratory Ruling, the FCC further found, “[a]lthough the TCPA generally prohibits autodialed calls to wireless phones, it also provides an exception for autodialed and prerecorded message calls for emergency purposes or made with the prior express consent of the called party. 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. In the 1992 TCPA Order, the Commission 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…. We emphasize that prior express consent is deemed to be granted only if the wireless number was provided by the consumer to the creditor, and that such number was provided during the transaction that resulted in the debt owed…. However, we agree … that calls solely for the purpose of debt collection are not telephone solicitations and do not constitute telemarketing. Therefore, calls regarding debt collection or to recover payments are not subject to the TCPA’s separate restrictions on ‘telephone solicitations.’ 4 FCC 07-232 Declaratory Ruling, pp. 6-7.
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Plaintiff [also] alleges that the debt collection calls placed by defendant to her cellular telephone to collect a debt she admittedly owed to Time Warner violated the TCPA and the FDCPA. Moreover, plaintiff claims that she verbally revoked her consent to receive those calls on or about March 26, 2007. As discussed above, the TCPA was enacted by Congress in an effort to address the growing number of telemarketing calls and certain telemarketing practices. In part, the TCPA also addresses, in general, the use of an automated dialing system to call cellular telephones absent consent from the consumer. However, as clearly stated in the December 28, 2007 FCC Declaratory Ruling, calls regarding debt collection or to recover payments are not subject to the TCPA’s separate restrictions on “telephone solicitations.” The FDCPA, not the TCPA, was enacted by Congress to, inter alia, eliminate abusive debt collection practices by debt collectors. ¶ Because plaintiff readily admits that she did not notify defendant in writing that she wished the defendant to cease further communication with her and because plaintiff does not allege that the calls she received were at an unusual time or place or a time or place known or which should be known to be inconvenient to the consumer, plaintiff’s only claim is that the defendant intentionally engaged in conduct the natural consequence of which is to harass, oppress or abuse in violation of the FDCPA. With the exception of plaintiff’s conclusory statement that she found the debt collection calls to be inconvenient because they interrupted her day and that she found the calls upsetting, there is absolutely nothing in the record before this Court to support such a claim. Dkt. # 28-8, ¶ 5. Indeed, in opposition to defendant’s motion for summary judgment, plaintiff calculates, based on the deposition testimony, that as few as 6 and as many as 14 calls were made to her using voice recorded messages between March 26, 2007 and May 22, 2007. Dkt. # 28-4, ¶ 12. Plaintiff’s opposition to the instant motion for summary judgment fails to identify any evidence to support her conclusion that defendant’s legitimate efforts to collect a debt she admittedly owed by calling the telephone number she provided were intended to harass, oppress, or abuse her in any way. Moreover, plaintiff offers no legal basis for this Court to conclude that as few as 6 or as many as 14 calls in a two month period to pursue a legitimate debt, without more, are per se in violation of the FDCPA. ¶ With respect to plaintiff’s claim that defendant’s calls to her cellular telephone violated the TCPA, plaintiff once again relies on her assertion that on March 26, 2007, she made a verbal request for the calls to cease. There is nothing in either the TCPA or the FCC’s December 28, 2007 Declaratory Ruling to support plaintiff’s claim that a verbal request is sufficient to cease legitimate debt collection efforts. As discussed above, the TCPA was enacted by Congress to address telemarketing calls and telemarketing practices and the FDCPA was enacted to address debt collection practices. However, as noted above the FDCPA requires written notice to cease debt collection efforts which plaintiff readily admits she did not provide to defendant. Although the TCPA has some application to the instant case insofar as defendant was placing prerecorded automated calls to plaintiff’s cellular telephone, Congress has clearly stated that debt collection efforts are governed by the FDCPA. Thus, plaintiff’s attempt to infer that a verbal request to cease debt collection calls is sufficient under the TCPA and that any subsequent calls are in violation of the TCPA misses the mark. To cease debt collection calls, written notice is required. To the extent plaintiff wants to challenge the FCC’s December 28, 2007 Declaratory Ruling addressing prior express consent, the proper vehicle to make such a challenge is to file a petition for review of the FCC’s final order in the Court of Appeals naming the United States as a party. See Leckler v. Cashcall, Inc., No. C 07-04002 SI, 2008 WL 5000528 (N.D.Cal. Nov.21, 2008).
The Plaintiff has filed objections to the District Court.