Palisades' Repeated Calls to Non-Debtor Not Barred By TCPA, Western District Holds

Does the Telephone Consumer Protection Act (TCPA) provide any protection when a debt collector repeatedly telephones someone who is not the debtor? Federal courts accross the United States are split over this question, but in the Western District of New York, the answer is now "no."

In a recent case before Chief Judge William M. Skretny, the record showed that Palisades Collection made automated calls several times per week over a seven month period to the residence of Mr. John M. Franasiak regarding a debt owed by his daughter. Mr. Franasiak repeatedly told Palisades he was not the debtor and that the debtor did not reside with him. Eventually, he sent a cease and desist letter to Palisades. Palisades ignored his pleas. Finally, he filed a case against Palisades under the TCPA.

The TCPA was implemented jointly by the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) in 1991 and includes specific rules about calls made to private homes by autodialers. One exception to the Act's general prohibition against such calls is when the recipient has a prior established business relationship with the caller.

Judge Skretny's decision, on Palisades' motion for summary judgment, noted that the FCC has not distinguished between debtors and non-debtors in its exemptions to the Act. "It is for the FCC, and not this Court, to determine whether a resident's privacy rights are adversely affected by seemingly intrusive calls by prerecorded messages," the court concluded. "Although it is the Court's opinion that such calls, when they are made to non-debtors, do adversely affect the individual's privacy interests, the FCC has found otherwise. Were this Court to [find for the plaintiff Mr. Franasiak], it would usurp the decision-making power Congress has properly left to another body, in this case, the FCC."

This is certainly not the first time the courts have grappled with this question. The U.S. Court of Appeals for the Eleventh Circuit, and federal district courts in the Northern District of Alabama and the Eastern District of Michigan reached the same conclusion as Judge Skretny, on the basis that all debt collection calls are exempt. On the other hand, The Eastern District of Pennsylvania has concluded that a non-debtor's rights are violated by such activies. So, unless the FCC acts to resolve this issue, the answer to whether you are protected by the TCPA if you are receiving auto-dialed debt collection calls is -- it depends on where you live.

The case is Franasiak v. Palisades Collection, 09-CV-00835. Decision available on Justia.

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