In Meadows v. Franklin Collection Service, Inc., 2011 WL 479997 (11th Cir. 2011), the Court of Appeals for the Eleventh Circuit found in an unpublished opinion that a triable issue of material fact existed as to whether 300 telephone calls over a 2 ½ year period constituted harassment.
We find that the district court erred in granting summary judgment in favor of Franklin on the § 1692d claim. Taking the facts in the light most favorable to Meadows, she received approximately 300 calls over a two and a half year period regarding debts she did not owe and people she did not know. Meadows testified that occasionally she would receive up to three calls a day. Most of the hundreds of calls Franklin placed to Meadows used an automated dialer, a machine capable of continuously dialing and leaving messages without human interaction. Franklin, moreover, continued to call Meadows until March 2009 despite being informed in May 2006 that the debts were not her own and that the debtors did not live with her. Meadows further testified that Franklin’s phone calls eventually made her feel harassed, stressed, upset, aggravated, inconvenienced, frustrated, shaken up, intimidated, and threatened on occasion. And, several times the calls woke her up from sleep and caused her difficulty sleeping. (Dkt. 84-1 at 84-85, 94, 95-96, 134-35, 153, 202-03.) Considering the volume and frequency of the calls, Meadows’s testimony that she informed Franklin of its mistake in May 2006, and Meadows’s testimony regarding the emotional stress caused by the calls, we find that there is a genuine issue of material fact as to whether Franklin caused Meadows’s telephone to ring with the intent to annoy or harass her. ¶ We reject Franklin’s contention that its telephone calls were not harassing because Meadows did not answer them. The plain language of § 1692d prohibits “causing a telephone to ring … with intent to annoy, abuse or harass any person at the called number.” (emphasis added). The statute itself recognizes that answering the phone is not necessary for there to be harassment. This makes good sense because a ringing telephone, even if screened and unanswered, can be harassing, especially if it rings on a consistent basis over a prolonged period of time and concerns debts that one does not owe. As Meadows testified, even though she did not answer every call, she had to stop whatever she was doing to see who was calling. And, the reason Meadows did not answer the calls was because she had previously told Franklin multiple times that she did not owe the debt and the debtors did not live with her. Thus, a reasonable juror could find that Franklin’s telephone calls were harassing even though Meadows did not answer many of the calls. ¶ We recognize that Franklin’s records indicated that Meadows’s phone number belonged to the Tidmores and to Taylor, and that Franklin may have been attempting to reach those actual debtors with its phone calls. And, we recognize that when a debt collector is told that a certain telephone number for a particular debtor is incorrect, the debt collector must be able to perform reasonable follow-up activities to ensure that the number they possess is actually incorrect. In this case, however, there is a factual dispute as to whether Franklin’s follow-up activities were reasonable. The reasonableness of Franklin’s follow-up activities turns in part on when and in what manner Meadows informed Franklin that she did not owe the debts and that Taylor did not live with her. Meadows testified that she told Franklin in May 2006 that her phone number no longer belonged to the Tidmores, she did not know the Tidmores, and the Tidmore debt was not hers. After receiving this information, Franklin continued to call Meadows regarding the Tidmore debt until early 2009. In addition, Meadows has produced evidence that Taylor lived in her own home with her own phone number from May 2006 to October 2006, and from April 2008 through March 2009. Meadows testified that during these time periods, in which Taylor was not living with Meadows and had her own phone number, Meadows informed Franklin that the debts belonged to Taylor and that Taylor did not live with her. Franklin nonetheless continued to call Meadows’s phone number. Taking these facts as true, a reasonable jury could conclude that Franklin’s calling practices were harassing because Franklin continued to call Meadows despite being on notice that she was not the debtor and that her phone number was not correct for Taylor or the Tidmores.
The Court of Appeals also found that the Plaintiff stated no claim under the TCPA, explaining:
We agree with the district court that Franklin did not violate the TCPA because its prerecorded debt-collection calls are exempt from the TCPA’s prohibitions on such calls to residences. Franklin had an established business relationship with the debtors (Taylor and the Tidmores), and was attempting to contact them at Meadows’s number. Because Franklin had an existing business relationship with the intended recipient of its prerecorded calls, and the calls were made for a commercial, non-solicitation purpose, we conclude that those calls are exempt from the TCPA’s prohibitions of prerecorded calls to residences. ¶ We reject Meadows’s argument that because she is a non-debtor, then the debt-collection exemptions do not apply because she did not have an established business relationship with Franklin. As the district court noted, the FCC has determined that all debt-collection circumstances are excluded from the TCPA’s coverage, and thus the exemptions apply when a debt collector contacts a non-debtor in an effort to collect a debt. Otherwise, a debt collector that used a prerecorded message would violate the TCPA if it called the debtor’s number and another member of the debtor’s family answered. ¶ Meadows also contends that Franklin violated 47 U.S.C. § 227(c)(5). That section prohibits an entity from making more than one “telephone solicitation” to the same person within a twelve-month period. Meadows argues that Franklin’s calls constituted “telephone solicitations” under the TCPA, and thus Franklin violated § 227(c)(5) by calling Meadows more than once in a twelve-month period. ¶ For purposes of the TCPA, the FCC has defined a “telephone solicitation” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.” 47 C.F.R. 64.1200(f)(12). Despite the undisputed fact that Franklin called Meadows in order to collect the debts of others, Meadows argues that the debt-collection calls were nonetheless “telephone solicitations.” According to Meadows, Franklin’s telephone calls, which sought to collect the debts of Taylor and the Tidmores from those individuals, were implicit attempts to ask Meadows to pay the debt herself. As a result, Franklin, by calling Meadows about the debts of others, was actually asking Meadows to “purchase her privacy and peace” and “invest in its service of debt collection” because the calls would continue if Meadows did not pay the debt herself. ¶ We reject Meadows’s invitation to stretch and distort the meaning of “telephone solicitation.” It is undisputed that Franklin did not try to sell anything to Meadows, and did not offer to provide her any services. Meadows admits as much. (Dkt. 84-1 at 78:9-21.) Moreover, the FCC has unequivocally stated that “calls solely for the purpose of debt collection are not telephone solicitations and do not constitute telemarketing” and “calls regarding debt collection … are not subject to the TCPA’s separate restrictions on ‘telephone solicitations.’ “ In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 565, ¶ 11 (Jan. 4, 2008). In our view, the definition of a “telephone solicitation,” especially in light of the FCC’s ruling interpreting that definition, is clear and does not include implicit “purchases of peace” and investments in services that Franklin never offered to Meadows. We accordingly find that Franklin’s calls were not telephone solicitations, and affirm the district court’s grant of summary judgment in favor of Franklin on the § 227(c)(5) claim.