Collector- June 2018 - 51
Turning to the consumer's FDCPA claim
under Section 1692d, the district court
found that "a reasonable jury could conclude
that CBE placed the calls with an intent
to annoy, abuse, or harass." The district
court based its decision on the consumer's
allegations that during a six-month period:
(1) CBE placed 189 calls to her; (2) She
received more than two call in one day; (3)
She asked CBE to stop calling; and (4) CBE
placed 10 calls to her place of employment.
Therefore, the district court denied CBE's
Motion for Summary Judgment on this issue.
As for the consumer's Section 1692f
claim under the FDCPA, which prohibits
a debt collector from using "unfair or
unconscionable means to collect or attempt
to collect any debt," the district court ruled
that the claim failed as matter of law because
the consumer did not allege, or argue, any
Section 1692f violation that was independent
of her Section 1692d claim. In so ruling, the
district court explained that "[c]ourts in other
Circuits have recognized a 'growing consensus
. . . that a claim under § 1692f must be based
on conduct either within the listed provisions,
or be based on conduct which falls outside of
those provisions, but which does not violate
another provision of the FDCPA.'"
Finally, the district court ruled that the
consumer's NDTPA claim failed as a matter
of law, holding that the NDTPA does not
apply to debt collection.
Given the significance of the TCPA to
participants in the accounts receivable
industry who face lingering uncertainty over
the meaning of ATDS, which has created
unreasonable and unworkable compliance
burdens, ACA committed Industry
Advancement Funds to CBE to help it defeat
the consumer's claims in the Marshall case and
obtain industry-favorable case law narrowing
the definition of ATDS in the TCPA.
As a result of ACA's ongoing and sustained
TCPA advocacy efforts, the D.C. Circuit
Court of Appeals decision in ACA Int'l. v.
FCC has already proven to have enormous
positive litigation and financial impact in
the Marshall case and will most assuredly
continue to do so for the many other ACA
members currently involved in TCPA
litigation across the country.
Similarly, ACA is encouraged by the
Marshall decision and confident that judges,
regulators and industry participants will
look to it as positive persuasive authority for
interpreting what equipment constitutes an
ATDS under the TCPA. And ACA is pleased
that the Marshall decision raises the number
of industry-favorable decisions, or wins,
the association has helped to achieve for its
members through the Industry Advancement
Program to a total of 37 in just four years.
If you want to read more about the
most recent significant judicial decisions
involving the credit and collection industry,
ACA members can always find concise case
summaries at acainternational.org/industryadvancement-program.
Karen Scheibe Eliason is ACA International's