May 202011
 May 20, 2011  Posted by  Court, Laws

The collection industry may be happy, but this is not good news for some consumers:

The District Court for the Eastern District of Pennsylvania produced a victory for the collection industry, holding collection calls to residential lines of nondebtors are exempt under the Telephone Consumer Protection Act (TCPA). The court also held consumers have the burden of proving their underlying debt is for personal use when asserting a claim under the Fair Debt Collection Practices Act (FDCPA).

In Anderson v. AFNI, Inc., an individual alleged a debt collector violated the TCPA and the FDCPA by placing 76 telephone calls to her home telephone number using an automatic dialing system when the individual did not consent to the telephone calls being made. It was undisputed the individual was a victim of identity theft and had notified consumer reporting agencies as well as the debt collector of this fact. The skiptracing services used by the debt collector continued to produce the individual’s number, and calls were placed to the individual’s residence even though she was not the intended recipient. The court held the individual had standing to bring a claim under the TCPA because 47 U.S.C. Section 227(b)(3) grants standing to “any person or entity.” The court asserted granting standing to unintended recipients does not contradict the Act.

The individual claimed the debt collector violated 47 U.S.C. Section 227(b)(1)(B) of the TCPA by initiating telephone calls to the individual’s residential telephone line using an artificial or prerecorded voice without the prior express consent of the individual. The TCPA prohibits debt collectors from using a prerecorded message to call a consumer’s residential line unless the call is made for an emergency purpose, a commercial purpose, by a tax-exempt nonprofit organization or there is an established business relationship.

The debt collector asserted “all” debt collection circumstances involve an established business relationship; therefore, the exemption, under 47 C.F.R. Section 64.1200(a)(2)(iii), applied and the collector was not liable.

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