In Powell v. West Asset Management, Inc., — F.Supp.2d —-, 2011 WL 1126040 (N.D.Ill. 2011), Judge Darrah found that the TCPA imposes no duty to mitigate on behalf of consumers receiving unsolicited telephone calls. Judge Darrah set forth the facts as follows:
The following facts are drawn from Plaintiff’s Complaint and are accepted as true for purposes of the Motion to Strike. Defendant is a debt collection agency. Compl. ¶ 6. Beginning in July 2010, Defendant attempted to collect a debt allegedly owed by a person named Charmaine Hunter to AT & T, with respect to an account ending in the numbers 5555. Id. ¶ 15. Plaintiff has never had any relationship with AT & T with respect to an account ending in the numbers 5555. Id. Without Plaintiff’s consent, Defendant called Plaintiff on his cellular phone twenty-five times between July 12, 2010 and September 7, 2010, in an attempt to collect Ms. Hunter’s debt. Id. ¶ 16–41. Defendant uses a system called “Guaranteed Contacts,” which has the capacity to dial numbers automatically, e.g., without requiring a human to dial a number. Id. ¶ 9–19. Defendant used its “Guaranteed Contacts” system to call Plaintiff on his cellular phone in the twenty-five instances at issue. Id. ¶ 18–41. ¶ In his Complaint, Plaintiff alleges that Defendant violated the TCPA by calling Plaintiff on his cell phone using an automatic telephone dialing system and/or prerecorded or automatic voice messages. The TCPA prohibits the use of “automatic telephone dialing systems or an artificial or prerecorded voice” to call cellular telephones. As an affirmative defense to Plaintiff’s TCPA claim, Defendant pleads “to the extent [P]laintiff can establish that [he] has sustained any damages, [P]laintiff has failed to mitigate those damages by either answering one of West’s calls, or by returning West’s calls to advise West that they were allegedly calling the wrong party.”
In striking the affirmative defense, Judge Darrah explained:
Furthermore, in a March 2000 Enforcement Action Letter, the Federal Communications Commission (“FCC”) indicated that the TCPA does not impose a duty to mitigate with respect to the receipt of un-solicited faxes: “Some of the unsolicited facsimile advertisements provide consumers with telephone numbers to call to express their desire not to participate in any future polls and/or to be removed from the entities’ distribution list(s). Faxing even one advertisement, however, constitutes a violation of the TCPA and the Commission’s Rules if the sender does not have an established business relationship with the recipient and/or the recipient’s prior express consent to receive the fax advertisement. Accordingly, recipients of unsolicited facsimile advertisements are not required to ask that senders stop transmitting such materials.” See FCC, In re 21st Century Fax(es), Ltd., Enforcement Action Letter, Case No. EB–00–TC–001 (March 8, 2000). While the FCC Enforcement Action Letter concerns unsolicited faxes, covered under Section 227(b)(1)(C), and not unsolicited telephone calls covered under Section 227(b)(1)(A), it is equally persuasive given the similarity of the statutory provisions. ¶ In addition, courts that have considered whether a plaintiff has a duty to mitigate damages under Section 227 of the TCPA have found there is no such duty. See Holtzman v. Turza, No. 08 C 2014, 2010 WL 3076258, at *5 (N.D.Ill. Oct. 29, 2010); Fillichio v. M.R.S Ass’ns, Inc., No. 09–612629–CIV, 2010 WL 4261442, at *5 (S.D .Fla. Oct. 19, 2010); State ex rel. Charvat v. Frye, 868 N.E.2d 270, 275 (Ohio 2007); Manuf. Auto Leasing, Inc., v. Autoflex Leasing, Inc., 139 S.W.3d 342, 347 (Tex.Ct.App.2004); Onsite Computer Consulting Svs., Inc., v. Dartek Computer Supply Corp., No. 05AC–000108 I CV, 2006 WL 2771640, at *4 (Mo.Ct.App. May 17, 2006); Jemiola v. XYZ Corp., 802 N.E.2d 745, 750 (Ohio Misc.2003).
This decision would appear to be contrary to the decision reached by the California Court of Appeal in the Kinder matters. See post at http://www.calautofinance.com/?p=1247