In Tara v. AFNI, Inc., here, Judge Dalzell held that an identity theft victim has standing to sue a debt collector under the TCPA for calling the victim’s land-line (not the victim’s cell phone) with its autodialer, but found that debt collection calls made to land lines are exempt from the TCPA – whether made to debtors or innocent non-debtors. The Court explained:
It may be true that the FCC’s Reports and Memoranda leave some slight doubt as to whether debt collection calls to non-debtors are covered by the exemption for established business relationships. While the 1992 Report and Order flat-footedly states that such calls always “involve a prior or existing business relationship,” 7 FCC Rcd. at 8771, the Commission’s 1995 Memorandum Opinion and Order seems to suggest that this relationship may be terminated, that it is of relevance only in the context of solicitation calls, and that debt collection calls are principally protected by the exemption for “calls that do not transmit an unsolicited advertisement and are made for a commercial purpose.” 10 FCC Rcd. at 12400. The 2003 Report and Order similarly focuses on the fact that debt collection calls “constitute neither telephone solicitations nor include unsolicited advertisements,” 68 Fed. Reg. at 44,158. The 2008 Declaratory Ruling seems to leave some ambiguity as to which exemption covers debt collection calls, stating merely that such calls fall within “the exemptions adopted for commercial calls” and identifying those exemptions.4 23 FCC Rcd. at 561. Moreover, as Judge Davis observed in Watson v. NCO Group, Inc., 462 F. Supp. 2d 641, 644 (E.D. Pa. 2006), “the FCC has not directly addressed the issue of erroneous debt collection calls.” Since it would appear that “an erroneously called nondebtor has no such existing business relationship” with a debt collector, it might “follow[] that the purview of the FCC’s exemption does not extend to the type of calls made in this case.” Id. On the other hand, in 1992 the FCC stated, without qualification, that “all debt collection circumstances involve a prior or existing business relationship,” 7 FCC Rcd. at 8771 (emphasis added), and it has not chosen in the succeeding years to modify this categorical pronouncement. Thus, other courts have accepted that this statement applies even to calls to nondebtors. See, e.g., Meadows v. Franklin Collection Serv., Inc., 2010 WL 2605048, at *6 (N.D. Ala. 2010) (“[T]he FCC has determined that all debt collection circumstances are excluded from the TCPA’s coverage. This finding is broad enough to cover a debt collection activity that contacts a non-debtor.”); Meadows v. Franklin Collection Serv., Inc., 2011 WL 479997, at *4 (11th Cir. 2011) (“[T]he FCC has determined that all debt-collection circumstances are excluded from the TCPA’s coverage, and thus the exemptions apply when a debt collector contacts a non-debtor in an effort to collect a debt.”). We need not decide today whether the exemption under 47 C.F.R. § 4.1200(a)(2)(iv) respecting established business relationships applies to debt collection calls to non-debtors, however, because there is no controversy as to the applicability of § 64.1200(a)(2)(iii) to such calls. Calls made purely for the purpose of collecting a debt clearly constitute calls “made for a commercial purpose” that “do[] not include or introduce an unsolicited advertisement or constitute a telephone solicitation,”5 § 64.1200(a)(2)(iii), whether they are made to a debtor or non-debtor. Thus, we are aware of no court that has concluded that § 64.1200(a)(2)(iii) does not apply to debt collection calls to non-debtors. See, e.g., McBride v. Affiliated Credit Servs., Inc., 2011 WL 841176, at *3 (D. Or. 2011) (“While I certainly agree that non-debtors lack a prior business relationship with a debt collector, according to the Commission debt collection calls are not solicitations or advertisements and thus fall within a recognized exemption.”); Santino v. NCO Fin. Sys., 2011 WL 754874, at *6 (W.D.N.Y. 2011) (“[T]he court concludes that the conduct on the part of defendant complained of in this case fits squarely within the exemption provided in 47 C.F.R. § 64.1200(a)(2)(iii)).”).
Plaintiff’s FDCPA claim failed, too, for want of proof. As an identity theft victim, the Plaintiff was unable to establish that the ‘debt’ being collected was a “consumer debt” under the FDCPA – meaning, one “primarily for personal, family, or household purposes. ” The Court explained, “No reasonable jury could find, based on the evidence Anderson has adduced, that the obligations at issue here were consumer debts. A residential address and an individual debtor — on inferences alone — do not a consumer debt make, even applying the grace we are obliged to extend. In short, Anderson’s proffers regarding the nature of Sampson’s debt amount to nothing more than conjecture or speculation.