The United States District Court for the District of New Jersey recently held in Samuel Chisholm v. AFNI, Inc. that a debt collector “could not reasonably be found to violate” the Fair Debt Collection Practices Act by calling a consumer 18 times on his cell phone over the course of 13 days.  All calls were between 9:30 a.m. and 7:00 p.m., 17 of which were unanswered and one in which the consumer hung up mere seconds after answering the call.  The Court also dismissed the plaintiff’s claims under the Telephone Consumer Protection Act because the consent he provided to DirecTV, the original creditor, extended to AFNI, the debt collector.

The Court granted summary judgment for AFNI as to the claims under sections 1692d and 1692f of the FDCPA because Chisholm’s claims were based solely on a high volume of calls.  The judge stated, “Courts around the country have held that the number of calls alone cannot violate the FDCPA .”  Furthermore, Chisholm could not maintain a separate cause of action under section 1692f of the Act because his claim was “premised on the same conduct as his § 1692d and § 1692d(5) claims .”  The Court cited to another District of New Jersey case that explained that section 1692f “is considered to be a catch-all provision for conduct that is unfair but is not specifically identified in any other section of the FDCPA.” (emphasis added).

Section 1692d of the FDCPA prohibits “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.”  This section goes on to identify, in a non-exhaustive list, specific conduct that would violate the section.  Specifically applicable to this case is § 1692d(5), stating that “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number” is a violation.

The Court explained that “[t]he standard for deciding when conduct is harassing, oppressive, or abusive is an objective one, turning on the ‘natural consequences’ of a debt collector’s conduct” rather than on how the debt collector’s actions made the consumer feel.  Therefore, “a plaintiff must also show some other egregious or outrageous conduct in order for a high number of calls to have the ‘natural consequence’ of harassing a debtor.”

In granting summary judgment to AFNI on the § 1692d claims, the Court reasoned that the calls in this case were not accompanied by “intemperate or improper language, let alone threats, vulgarity or insistence [and AFNI’s] representative immediately heeded Plaintiff’s [written and] only request to stop calling.”  Therefore, the judge determined that “no reasonable jury could find that the quantity, frequency, and proximity of the telephone calls demonstrates conduct, the natural consequence of which is to harass, oppress, or abuse the plaintiff under § 1692d.”

The Court’s approach is consistent with the purpose of the enactment of § 1692d(5), which is to not only look at the volume of calls, but to also analyze the intent of the caller to determine whether the debt collector’s actions constitute abusive conduct.

However, the CFPB’s July 2016 outline of new rules targeting third-party debt-collection operations proposed a “bright-line” rule that takes away the analysis of intent and only focuses on the volume of calls to determine harassing, oppressive, or abusive conduct.  Our discussion of the outline of proposed rules can be found here, and a recording of our webinar on this topic is available here.

The Court also found that AFNI was entitled to summary judgment on the TCPA claim because Chisholm granted prior express consent to DirecTV to call him at the time he entered into a valid contract with them.  This consent then extended to AFNI when his account was assigned to them for collection.  “[U]nder the TCPA, 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.”

The court determined that Chisholm also did “not create a genuine dispute over whether he revoked that consent.”