In Martin v. Cellco Partnership, 2012 WL 5048854 (N.D.Ill. 2012), Judge Guzman found that an in pro per Plaintiff’s TCPA claim against his cell phone carrier survived an FRCP 12b6 Motion arising out of autodialed debt collection calls placed by his creditor to his cell phone.
Verizon claims the TCPA claims against it must fail because it cannot be held liable for automated dunning calls placed by Vantage and Chase to Plaintiff’s cell phone. 47 U.S.C. § 227(b)(1)(A) (iii) (“It shall be unlawful for any person within the United States … to make any call … using any automatic telephone dialing system ….”) (emphasis added). According to Verizon, while it may be held vicariously liable for such calls, Plaintiff does not allege that Verizon exercised or retained the right to control the manner in which Vantage or Chase made the alleged phone calls. Thomas v. Taco Bell Corp., ––– F.Supp.2d ––––, 2012 WL 3047351, at *6 (C.D.Cal. Jun.25, 2012). But the Thomas case is unhelpful in analyzing the current motion to dismiss because that case was decided on summary judgment. In addition, the Thomas court addressed Taco Bell’s liability in the context of a tort-based vicarious liability analysis. However, as noted by Plaintiff, the Federal Communications Commission (“FCC”) has ruled that a creditor is responsible for calls made on its behalf. In In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559 ¶ 10 (Jan. 4, 2008) (“2008 TCPA Order”), the FCC stated that: Similarly, a creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission’s rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor placed the call.Verizon contends that the 2008 TCPA Order is inapplicable because it did not address the issue of vicarious liability in the context of this matter. But the 2008 TCPA Order appears to impose a strict liability standard on creditors who farm their debts out to third-party debt collectors. See, e.g., Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 642 (7th Cir.2012) (stating that as between a bill collector and a creditor, “[i]ndemnity may be automatic under ¶ 10 of the 2008 TCPA Order, which states that calls placed by a third party collector on behalf of a creditor are treated as having been made by the creditor itself”). The paragraph in which this statement is made addresses the concept of prior express consent and states that “[t]o ensure that creditors and debt collectors call only those customers who have consented to receive autodialed and prerecorded message calls, we conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent.” (2008 TCPA Order, ¶ 10 .) It then goes to make the statement quoted above. On the current record, the Court can discern no reason why the statement in the 2008 TCPA Order is inapplicable to the instant case. While the Court cannot definitively state at this stage of the litigation that Verizon is liable, neither will the Court dismiss the TCPA claims against Verizon at this time. Thus, the motion to dismiss Counts VI and VII against Verizon is denied.