Debt Collection: Santino v. NCO Financial Systems Inc.

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U.S. District Court, Western District of New York

Debt Collection

Pre-Recorded Messages — Exemption from TCPA Claims

Santino v. NCO Financial Systems Inc.
09-CV-982
Judge Curtin

Background: Plaintiffs Maria and Giuseppe Santino claim that defendant NCO Financial Systems Inc., a debt collection agency, made repeated telephone calls to their home phone attempting to collect a debt that plaintiffs were not obligated to pay, in violation of the Fair Debt Collection Practices Act and the and the Telephone Consumer Protection Act of 1991. The defendant has moved for partial judgment on the pleadings dismissing the plaintiffs’ TCPA claim on the ground that the alleged telephone calls are subject to an express exemption from the TCPA’s prohibitions, as set forth in the regulations promulgated and interpreted by the Federal Communications Commission.
The plaintiffs allege in their complaint that NCO made “repeated annoying and otherwise harassing telephone calls” to the plaintiffs’ home telephone for the purpose of collecting a debt on behalf of a creditor of a person named “Hazel Meyers.”  In July 2009, plaintiff Maria Santino spoke with a representative of NCO, who identified himself as “Mr. Parker.” Ms. Santino informed Mr. Parker that the plaintiffs did not know anyone named Hazel Meyers, and told him to stop calling. According to the plaintiffs, Mr. Parker became belligerent, and called Ms. Santino a “liar.” The plaintiffs allege that thereafter NCO “began calling more frequently … making daily telephone calls.”

Ruling: The court notes that, in an effort to address consumer privacy concerns brought about by the “immense” growth of the telemarketing industry, Congress enacted the TCPA in 1991 making it unlawful for any person within the United States “to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempt by rule or order by the FCC.” The FCC explained at length its efforts “to implement the TCPA in a way that reasonably accommodates individuals’ rights to privacy as well as the legitimate business interests of telemarketers.” In several rulings, the FCC affirmed this determination that prerecorded debt collection calls were covered by the exemption set forth at 47 C.F.R. §64.1200(a)(2)(iii). The court further observes that several decisions provide support for the defendant’s position that prerecorded calls intended solely for the collection of a debt — even calls received by non-debtors — are specifically exempted from the TCPA’s coverage by rule and order of the FCC.
The court concludes that the conduct on the part of the defendant complained of in this case fits within the exemption provided in 47 C.F.R. §64.1200(a)(2)(iii), as interpreted by the FCC in 1992, 1995, and 2008 rulings. Accordingly, the plaintiff’s TCPA claim is implausible on its face, and the defendant’s motion for judgment on the pleadings is granted, dismissing this claim as a matter of law.

Frank Junior Borgese of Graham Law PC for the plaintiffs; Brian C. Shartle of Sessions, Fishman, Nathan & Israel LLP for the defendant