In Stuart v. AR Resources, Inc., 2011 WL 904167 (E.D.Pa. 2011), Judge Buckwalter allowed a Plaintiff’s TCPA-FDCPA claim to proceed, explaining:
Plaintiff next asserts that Defendants have violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., by calling her cellular telephone with automated recordings. (Compl.¶¶ 15, 36.) Under the TCPA, it is unlawful: (A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice-…(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mo-bile radio service, or other radio common carrier service, or any service for which the called party is charged for the call….47 U.S.C. § 227(b)(1)(A)(iii). Defendant argues that the Federal Communications Commission (“FCC”) has expressly exempted from the TCPA calls made for debt collection purposes. (Def.’s Mot. Dismiss 7-8.) Indeed, in a 1992 Report and Order, the FCC exercised its authority under the TCPA to “create[ ] an express exemption for calls made to a party with whom the caller has an established business relationship.” Watson v. NCO Group, Inc., 462 F.Supp.2d 641, 644 (E.D.Pa.2006); In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 FCC Rcd. 8752, 8771-8772 (1992). The Report went on to clar-ify that “all debt collection circumstances involve a prior or existing business relationship,” such that debt collection calls fall within the Report’s stated exemp-tions. 7 FCC Rcd. at 8771-8772. This exemption, however, applies only to residential telephone calls under section 227(b)(1)(B)-a provision not at issue here.FN3 In the instant case, Plaintiff alleges that Defendants contacted her via cell phone, placing her claim within the purview of 227(b)(1)(A)(iii). As noted above, the text of section 227(b)(1)(A)(iii) offers exemptions only for “a call made for emergency purposes or made with the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A)(iii). In a 2008 Declaratory Ruling, the FCC clarified that such express consent “is deemed to be granted only if the wireless number was pro-vided by the consumer to the creditor, and that such number was provided during the transaction that re-sulted in the debt owed.” In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, Request of ACA Int’l for Clarification and Declaratory Ruling, 23 FCC Rcd. 559, 564-65 (2008). The FCC also reiterated the lack of other ex-ceptions to section 227(b)(1) (A)(iii), recognizing that prerecorded calls could be particularly costly to cellular subscribers who pay for incoming calls. Id. at 562, 565 (citing Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, 14115 (2003)). [FN3. 47 U.S.C. § 227(b)(1)(B) makes it un-lawful: to initiate any telephone call to any resi-dential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the Commission under paragraph (2)(B). 47 U.S.C. § 227(b)(1)(B) (emphasis added)] Plaintiff’s allegations indicate no such “express consent.” To the contrary, Plaintiff maintains that she is not the debtor. (Compl.¶ 8.) She further alleges that Defendants contacted her “without prior consent … by means of automatic telephone calls or prerecorded messages at a cellular telephone….” (Compl.¶ 36.) Such allegations do not fall within an exemption to § 227(b)(1)(A)(iii) and are sufficient to establish a right to relief. Accordingly, the Court will permit Plaintiff’s TCPA claim to proceed.
The Court found, however, that the Plaintiff’s common law intrusion on seclusion claim could not proceed, explaining:
To state a claim for intrusion upon seclusion, Plaintiff must allege “an intentional intrusion upon the seclusion of their private concerns which was substantial and highly offensive to a reasonable per-son, and aver sufficient facts to establish that the in-formation disclosed would have caused mental suffering, shame or humiliation to a person of ordinary sensibilities.” Boring v. Google Inc., 362 Fed. Appx. 273, 279 (3d Cir.2010) (quoting Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 570 Pa. 242, 809 A.2d 243, 247 (Pa.2002)). Pennsylvania has adopted the definition of intrusion upon seclusion as set forth by the Restatement (Second) of Torts, § 652B, which states: One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy if the intrusion would be highly offensive to a reasonable person. [para] Desmond v. Phillips & Cohen Assoc., Ltd., 724 F.Supp.2d 562, 568 (W.D.Pa.2010) (citing Larsen v. Philadelphia Newspapers, Inc. ., 375 Pa.Super. 66, 543 A.2d 1181, 1186-87 (Pa.Super.Ct.1988)). The Restatement explicitly provides that there is no liability for “calling [a plaintiff] to the telephone on one occasion or even two or three, to demand payment of a debt. It is only when the telephone calls are re-peated with such persistence and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial burden to his existence, that his privacy is invaded.” RESTATEMENT (SECOND) OF TORTS § 652B cmt. d.; Desmond, 724 F.Supp.2d at 568-69; Diaz v. D.L. Recovery Corp., 486 F.Supp.2d 474, 480 (E.D.Pa.2007). [para] Based on the standards set forth in the Second Restatement, the Court finds Plaintiff has not alleged sufficient facts to support a claim for intrusion upon seclusion. Plaintiff alleges only that Defendants “intentionally intruded upon Plaintiff’s right to privacy by continually harassing Plaintiff with telephone calls,” and that these calls were “so persistent and repeated with such frequency as to be considered ‘hounding the plaintiff,’ and ‘a substantial burden to her existence.’ ” (Compl.¶¶ 42-43.) As Defendant notes, Plaintiff merely avers that Defendants called her persistently, and then concludes that such calls were sufficient to demonstrate a substantial burden. Nowhere does Plaintiff specify the number or substance of the calls, nor does she offer examples of “highly offensive” conduct apart from Defendants’ use of profane and abusive language (allegations which, as the Court noted above, are also notably vague and conclusory). “[E]fforts to collect a debt may be annoying, embarrassing, and upsetting with-out rising to the level of an invasion of privacy.” Leahey v. Franklin Collection Serv., Inc., No. CIV.A. 09-00709, 2010 WL 5279831, at *4 (N.D.Ala. Feb.4, 2010). While Plaintiff’s allegations may be enough to state a plausible claim under the FDCPA, they are not sufficient to support a claim for invasion of privacy. Accordingly, the claim must be dismissed.