District Court (Pa.) Says Consumer Can Not Exploit the Disconnect Between the TCPA and FDCPA to State a Claim — Pardon the Pun

In Gomez v. Oxford Law, 2015 WL 58766 (M.D.Pa. 2015), Judge Munley held that conflicting language in the TCPA and FDCPA as to when, during a voicemail message, the caller must identify itself can not be exploited to state a claim under the FDCPA.

Plaintiff contends section 1692e(5) prohibits two distinct types of conduct: (1) threats to take action that cannot be legally taken and (2) illegal acts. Here, plaintiff does not assert that defendant’s message is a threat to take action that cannot legally be taken. (Doc. 20, Pl.’s Br. in Supp. Mot. for Summ. J. at 4–6; Doc. 24, Pl.’s Reply Br. at 2). Rather, plaintiff claims defendant’s message is an illegal act.  Specifically, defendant’s message is an illegal act because it violates the Telephone Consumer Protection Act (hereinafter “TCPA”), 47 U.S.C. § 227. Pursuant to the Telephone Consumer Protection Act (“TCPA”), it is unlawful for any entity to place a telephone call using a prerecorded voice unless the caller states at the beginning of the message the identity of the business, individual, or other entity that is responsible for the incoming call. FN2 47 U.S.C. § 227(d)(3)(A).  [FN2. The TCPA provides that “all artificial or prerecorded telephone messages (i) shall, at the beginning of the message, state clearly the identity of the business, individual or other entity initiating the call….” 47 U.S.C. § 227(d)(3).]   In the instant matter, defendant fails to identify the caller at the beginning of the message. (SOF ¶ 6). Instead, defendant identifies itself in the seventh sentence of the message. (Id.) Therefore, plaintiff argues, defendant’s failure to identify itself at the beginning of the message is an illegal act. Because this illegal act occurred during the collection of a debt, defend-ant has violated section 1692e(5)’s prohibition against illegal acts.FN3 The court disagrees.  [FN3. Even if the court accepts plaintiff’s argument that the message violated the TCPA, defendant’s message is at most a technical violation. Defendant’s message contains introductory sentences to comply with the FDCPA. Specifically, the FDCPA provides that “[e]xcept as provided in section 1692b of this title [relating to obtaining location information] … a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer [.]” 15 U.S.C. § 1692c(b). It appears that the purpose of the introductory comments is to ensure that no one but the debtor listens to the message about the debt. Thus, the defendant “violated” the TCPA to comply with the FDCPA.]  Defendant’s message fails to trigger liability under section 1692e(5) for two reasons. First, section 1692e(5)’s plain meaning applies only to threats to take any action that cannot legally be taken or that is not intended to be taken. Here, the message is devoid of any threat. The message states in relevant part: “This is Casey Fox from Oxford Law, LLC. This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose. Please contact me 215–526–2600.” (SOF ¶ 6). Defendant is not threatening to institute a debt collection lawsuit. Defendant is not threatening to garnish plaintiff’s wages. Rather, defendant is asking the plaintiff to call it back.  Second, even if the court were to construe section 1692e(5) to include both threats and illegal acts, defendant’s technical violation of the TCPA-the illegal act-is not the type of illegal act the FDCPA prohibits.