In Gryzbowski v. I.C. System, Inc. — F.Supp.2d —-, 2010 WL 774386 (M.D.Pa. 2010), Judge Vanaski held that cell phone messages are subject to Foti, explaining:
Although there is no Third Circuit case law dealing with the appropriateness of identification of a debt-collector in a voicemail or answering machine message, numerous district courts have been faced with the issue and determined that the debt-collector’s failure to identify itself as a debt-collector when leaving messages violates the FDCPA. See, e.g., Edwards v. Niagra Credit Solutions, Inc., 586 F.Supp.2d 1346, 1352-53 (N.D.Ga.2008); Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F.Supp.2d 1104, 1116 (C.D.Cal.2005); Masciarelli, 529 F.Supp.2d at 185; Foti, 424 F.Supp.2d at 669; Mark v. J.C. Christensen & Assocs., Inc., No. 09-100, 2009 WL 2407700, at *4 (D.Minn.2009). In Foti, the court held that a pre-recorded message left on the plaintiff’s home answering machine that failed to notify the plaintiff that the call was from a debt-collector, violated section 1692e(11). Foti, 424 F.Supp.2d at 669. In Mark, the defendant made a similar argument to that presented here. The defendant argued:
when leaving a voicemail or answering machine message, there is a concern that someone other than the consumer will hear the message. Thus, debt collectors are faced with a ‘Hobson’s choice’ of, on the one hand, leaving a ‘short, non-offensive message’ that fails to make the necessary disclosures and thereby exposes the debt collector to claimed violations of § 1692d and § 1692e or, alternatively, leaving a message that makes the necessary disclosures but in so doing runs the risk that a third party will hear the message, thus exposing the debt collector to claimed violations of the prohibition in 15 U.S.C. § 1692c(b) on third party disclosures.
Id. at *4. The court was not persuaded by the defendant’s argument, and found that the defendant’s risk came as a result of selection of what it viewed as the “easiest or most cost-effective method of attempting to collect debts.” Id. at 5. “Debtors have other methods to reach debtors including postal mail, in-person contact, and speaking directly by telephone.” Chalik v. Westport Recovery Corp., 2009 WL 5191422, at *5 (S.D.Fl. Oct.30, 2009); Berg, 586 F.Supp.2d at 1344; Foti, 424 F.Supp.2d at 659 (“Debt collectors … could continue to use other means to collect, including calling and directly speaking with the consumer or sending appropriate letters.”). [para] Defendant tries to distinguish the case sub judice from Foti and the cases that follow Foti‘s line of reasoning by arguing that in Foti the debt collector left pre-recorded messages on the debtor’s home answering machine. Accordingly, Defendant argues that Foti does not address “(1) the issue in the instance case where the call is placed to the consumer at her place of employment and (2) the interplay of the mandatory provisions contained in Section 1692c(b) with the other sections of the Act when calls are not placed to debtor’s at their homes.” (Opp. Mt. S.J., Dkt. 17, at 14.) These distinctions are not persuasive. First, the calls were not placed to Plaintiff at her place of employment; they were calls to her personal cellular telephone. Although Defendant believed that the number was that of her employer, its subjective belief is irrelevant as the FDCPA is a strict liability statute. See Masciarelli, 529 F.Supp.2d at 186; Foti, 424 F.Supp.2d at 661. Second, Defendant has failed to cite persuasive authority that a debt collector’s identification duty changes when it leaves voicemail messages on a person’s cellular telephone as opposed to a home or work voicemail. As found by other courts, “leaving the recorded messages on the consumer’s home telephone number [does] not cure the dilemma because the possibility still existed that a spouse, relative, or roommate would listen to the message.” see Mark, 2009 WL 2407700, at *5. Accordingly, Defendant finds itself in its current “predicament” only because of the specific way that was selected to collect debts. See id.