In Hoover v. Monarch Recovery Management, Inc., 2012 WL 3638680 (E.D.Pa. 2012), Judge Gardner allowed a telephonic harassment case to proceed, but dismissed an TCPA “unintended recipient” case based on Meadows as to land-line calls, deferring to the FCC on the subject. On the harassment case, Judge Gardner found that Plaintiff stated a claim for calls, on average, ten times per week for eleven weeks.
Plaintiff avers that defendant contacted her by telephone, on average, more than ten times per week, for approximately eleven weeks. To determine whether plaintiff has pled conduct by defendant constituting “actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of the calls.” Shand–Pistilli v. Professional Account Services, Inc., 2010 U.S.Dist. LEXIS 75056, at *11 (E.D.Pa. July 26, 2010) (O’Neill, S.J.). ¶ In Shand–Pistilli, my colleague Senior United States District Judge Thomas N. O’Neill, Jr. concluded that plaintiff pled sufficient facts to support a reasonable inference that the purpose of defendant’s repeated phone calls was to harass or annoy plaintiff. Id. at *11–12. While unlike in Shand–Pistilli, plaintiff in this case does not aver that she asked defendant to stop contacting her, plaintiff does aver that the calls made to her home telephone were constant and continuous, as plaintiff in Shand–Pistilli also alleged. Id. at *12. ¶ Furthermore, the volume of calls in this case, 110 times over an eleven-week period, is significantly higher than other cases in which courts in this judicial district permitted the parties to reach the discovery stage. For example, in Shand–Pistilli, the court denied a defendant’s motion to dismiss a § 1692d(5) claim when plaintiff averred that defendant had made “continuous” calls to plaintiff, without specifying an amount. Id. at *12–13. ¶ In addition, my colleague United States District Judge Gene Pratter denied defendant’s motion to dismiss a § 1692d(5) claim when plaintiff identified nine times when defendant called her in a thirty-day period, and averred that defendant called her other times as well. Carr v. NCO Financial Systems, Inc., 2011 U.S.Dist. LEXIS 145993 (E.D.Pa. Dec. 20, 2011) (Pratter, J.). ¶ Plaintiff cites the decision in Krapf v. Nationwide Credit Inc., 2010 U.S.Dist. LEXIS 57849 (C.D.Cal. May 21, 2010), where the United States District Court for the Central District of California noted that district courts disagree as to the volume of calls sufficient to raise a plausible claim under § 1692d(5). Although the cases cited by the district court in Krapf require plaintiff to meet a high threshold of call volume, plaintiffs in those cases were permitted to proceed through discovery before summary judgment was granted for failure to meet that threshold. ¶ For example in Tucker v. The CBE Group, Inc., 710 F.Supp.2d 1301 (M.D.Fla.2010) the court granted defendant’s motion for summary judgment when plaintiff averred that defendant called her 57 times over an unspecified period, and once called her seven times in one day. In Saltzman v. I.C. System, Inc., 2009 U.S.Dist. LEXIS 90681, at *10–11 & n. 4 (E.D.Mich. Sept. 30, 2009) the court granted defendant’s motion for summary judgment when plaintiff averred that defendant called plaintiff between ten and twenty times successfully and between twenty and fifty times unsuccessfully over approximately one month. ¶ Defendant cites no instances where courts precluded a case with such a high volume of calls from proceeding to the discovery stage. Rather, Shand–Pistilli and Carr, discussed above, reveal that in this judicial district, judges lean toward giving plaintiff an opportunity to conduct discovery if plaintiff alleges a significant volume of calls, even without alleging separate facts supporting defendant’s intent. ¶ Defendant cites a Western District of Washington case in which the United States District Court found that § 1692d(5) “does not even prevent a collector from calling multiple times in a week, or even in a day. Allegations of daily, or nearly daily, phone calls do not raise a triable issue of fact to claims under § 1692d(5).” Dudley v. Powell Law Office, P.C., 2011 U.S.Dist. LEXIS 111688, at *2 (W.D.Wash. Sept. 29, 2011) ¶ In Dudley, the court granted defendant’s motion to dismiss plaintiff’s § 1692d(5) claim. However, the Dudley case is distinguishable from the instant matter because in Dudley, defendant called plaintiff only four times in one day, and at no other time. On the other hand, in the case before this court, defendant called plaintiff twice per day, each day for eleven weeks. ¶ As noted above, “whether conduct harasses, op-presses, or abuses will be a question for the jury”. Regan, 2009 U.S.Dist. LEXIS 112046, at *18 (quoting Jeter, 760 F.2d at 1179). Absent authority in this district that the volume and pattern of calls in this case fails to demonstrate an intent to harass, I find that plaintiff has pled sufficient facts to support a reason-able inference that defendant violated § 1692d(5) of the FDCPA. Accordingly, defendant’s motion for judgment on the pleadings regarding plaintiff’s § 1692d(5) claim is denied.
As to the TCPA claim, Judge Gardner gave a lengthy explanation as to why deference to the FCC’s position on unintended recipients should be given.
Most district courts, as well as the United States Court of Appeals for the Eleventh Circuit, have given deference to the FCC’s categorical statement that all debt collection calls made to residential homes, including erroneous calls made to non-debtors, are exempted from the TCPA, despite the fact that it seems non-debtors do not have an established business relationship with either the defendant or the original creditor for whom the defendant is attempting to collect. See Meadows v. Franklin Collection Service, Inc., 414 Fed.Appx. 230, 235 (11th Cir.2011); Anderson v. AFNI, Inc., 2011 U.S.Dist. LEXIS 51368, at *30–31 (E.D.Pa. May 11, 2011) (Dalzell, J.); McBride v. Affiliated Credit Services, Inc., 2011 U.S.Dist. LEXIS 23131, at *8 (D.Or. Mar. 6, 2011); and Santino v. NCO Financial Systems, Inc., 2011 U.S.Dist. LEXIS 18185, at *12–13 (W.D.N.Y. Feb. 24, 2011). ¶ *13 In contrast, a minority of district courts have concluded that the FCC has not considered non-debtors in terms of the TCPA, and that the exceptions the FCC created do not apply to erroneous calls made to non-debtors. ¶ In Watson v. NCO Group, Inc., my colleague United States District Judge Legrome D. Davis concluded that because the FCC proceeded from the assumption that all debt collection calls involve a prior business relationship, and erroneous calls made to non-debtors involve no such relationship, then the FCC did not consider erroneous debt collection calls in creating its exceptions to the TCPA. 462 F.Supp.2d 641, 644 (E.D.Pa. Oct. 3, 2006) (Davis, J .). ¶ Courts that follow Watson FN37 analyze the facts of the case and decide whether the call falls under the exception for commercial calls that “do not adversely affect privacy rights and do not transmit an unsolicited advertisement.” Id. ¶ [FN37. This court is aware of only one court that has followed Watson for the proposition that the FCC did not consider erroneous debt collection calls in creating its exemptions to the TCPA. See Jenkins v. Allied Interstate, Inc., 2009 U.S.Dist. LEXIS 94183, at *9–10 (W.D.N.C.2009) where the court stated that “[c]alls erroneously made by a debt collector to an incorrect cell phone number are covered by [§ 227(b)(3)(C) ] of the TCPA.” (citing Watson ).] It is true that non-debtors have no prior business relationship with debt collection agencies. However, I am persuaded by the majority of jurisdictions that have held that all debt collection calls, even calls made to non-debtors, fall under the exemptions the FCC already created, specifically the exception for commercial calls that do not transmit an unsolicited advertisement and do not constitute a telephone solicitation. 47 C.F.R. § 64.1200(a)(2) (iii). ¶ I agree with the United States District Court for the Western District of New York, which stated in Franasiak v. Palisades Collection, LLC that it is up to the FCC to determine whether a non-debtor’s privacy rights have been violated, and that by classifying all debt collection calls as within their exceptions to the TCPA, the FCC has made that decision. 822 F.Supp.2d 320, 325 (W.D.N.Y.2011). ¶ The FCC created exceptions to the TCPA and stated that all debt collection calls are covered by the exceptions. Thus, I exercise my discretion not to question that determination, especially when that determination has been twice repeated, and not changed or clarified since the Watson decision. 10 FCC Rcd 12391, 12400 (FCC 1995); 23 FCC Rcd 559, 565 ¶ 11 (FCC 2008). ¶ Even if I were to consider, as did Watson, whether defendant violated plaintiff’s privacy rights, plaintiff’s TCPA claim would still be dismissed. Once the court in Watson concluded that the FCC did not consider non-debtors in creating its exceptions to the TCPA, the court analyzed itself whether that particular case fell under one of the FCC’s exceptions. ¶ The only exception it could fall under was a commercial call that did not transfer an unsolicited advertisement or constitute a telephone solicitation. 47 C.F.R. § 64.1200(a)(2)(iii). While calls to non-debtors seem to fall under this exception, the court must still consider whether the non-debtor’s privacy rights have been violated. Title 47 U.S.C. § 227(b)(1)(B) ensures that any exceptions the FCC made to the TCPA would not “adversely affect the privacy rights that [the TCPA] is intended to protect”. ¶ The Watson court held that non-debtors have “vastly greater privacy rights” than debtors. Watson, 462 F.Supp.2d at 644. In Watson, plaintiff non-debtor received over 200 calls from defendant over a period of five months, and spent over 53 hours speaking with 29 of defendant’s agents to explain that he did not owe defendant any debt and repeatedly and unsuccessfully attempted to stop the debt collection calls. Id. at 643. ¶ In Watson, Judge Davis concluded that “[w]hile the FCC has declared that a debtor’s privacy rights are not adversely affected when he receives debt collec-tion calls … a non-debtor’s rights are in fact violated when he is subjected to repeated annoying and abusive debt collection calls that he remains powerless to stop.” Id. at 644–45 (emphasis added). ¶ The case at hand is factually distinguishable from Watson. Plaintiff in this case does not allege in her Complaint that she ever attempted to contact defendant to say that she was a non-debtor, or that she ever attempted to get the calls to stop. Even if the court interprets the use of the phrase “alleged debt” throughout the Complaint in the light most favorable to the plaintiff and takes it as true that plaintiff was a non-debtor, unlike in Watson, plaintiff did not remain “powerless to stop” defendant’s calls. Id. ¶ The reason the Watson court ruled against the FCC’s seemingly clear statement that all debt collection calls made to residential telephone lines are exempt from the TCPA is because of the extreme facts giving rise to the invasion of privacy in that case. Though the FCC may have decided that debt collection calls do not constitute invasions of privacy against which the TCPA is intended to protect, the Commission could not have envisioned the extreme facts in Watson. ¶ Because plaintiff’s privacy rights here were not violated to the extent that plaintiff’s were in Watson, I will defer to the FCC’s position that all debt collection calls fall under its exceptions to the TCPA, and that the debt collection calls made to plaintiff do not con-stitute an invasion of privacy as a matter of law. ¶ Accordingly, defendant’s motion for judgment on the pleadings with regard to plaintiff’s TCPA claim contained in Count II of plaintiff’s Complaint is granted and Count II is dismissed with prejudice.