District Court (Az.) Finds Consumers Revoked Established Business Relationship; Properly Pleaded TCPA Claim Based on 100 Telephone Calls to Residential Number

In Shupe v. JPMorgan Chase Bank of Arizona, 2012 WL 1344786 (D.Ariz. 2012), Judge Collins held that plaintiffs stated a claim under the TCPA.Judge Collins found that the consumers revoked the “Established Business Relationship” under the TCPA which otherwise permitted auto-dialed calls to their residential telephone number.

The FCC has unequivocally stated that calls made solely for the purpose of debt collection are exempt calls under the TCPA because they either (1) stem from an existing business relationship, or (2) are made for a commercial purpose other than solicitation. In re Rules & Regulations Implementing the TCPA, 23 FCC Rcd. 559, 565 ¶ 5 (Jan. 4, 2008) (citing 1995 TCPA Reconsideration Order, 10 FCC Rcd 12391, 12400 ¶ 17 (July 26, 1995)). As the Recommendation noted, however, Defendant did not establish or argue that its calls were made for this purpose, (Doc. 23 at 10–11). Defendant only established that it had a debtor-creditor relationship with Plaintiff. (Id.; Doc. 4 at 7–13). Therefore, Defendant cannot claim this exemption for its calls at this stage in the proceedings. 2. Established Business Relationship Except where the calls are placed solely for debt collection purposes, an established business relation-ship may be terminated by the receiver by informing the caller to place the receiver on a do-not-call list. 47 C.F.R. § 64.1200(f)(4)(i). Termination of the estab-lished business relationship refers only to termination of the privilege to call based on the exemption and does not require a termination of all business between the parties. (Id.). Plaintiffs allege they had a business relationship with Defendant but terminated the relationship in August 2010. (Doc. 1–3). Plaintiffs further allege that the calls began after they wrote to Defendant to terminate the relationship. (Id.). Defendant argues, however, that Plaintiffs could not terminate the relationship unilaterally because (1) “as a matter of law and reason, the business relationship lasts as long as the promissory note and deed of trust were executory” and (2) unilateral termination by Plaintiffs would create an irreconcilable conflict with A.R.S. § 33–807.01. (Doc. 25 at 2–3). As to Defendant’s first argument, an established business relationship is a term of art under the TCPA and so is its termination. The regulations make clear that termination of an established business relationship is not equivalent to termination of the entire relationship between a caller and a receiver. It simply means the caller’s business relationship with the recipient no longer entitles it to initiate solicitation phone calls to the recipient using an artificial or prerecorded voice.As to Defendant’s second argument, A.R.S. § 33–807.01 requires a mortgage lender to contact in writing a borrower who occupies the subject property as his principal residence at least thirty days before notice of a trustee’s sale is given in order to explore options to avoid foreclosure. Clearly, a statute requiring an attempt to contact a borrower in writing is not inconsistent with the borrower’s right to terminate the established business relationship within the meaning of the TCPA.Plaintiffs sufficiently alleged they terminated their established business relationship with Defendant in accordance with 47 C.F.R. § 64.1200(f)(i). There-fore, for the purposes of this Motion to Dismiss, Defendants cannot claim the established business relationship exemption.