In Hilgenberg v. Elggren & Peterson, 2015 WL 4077765,  (D.Utah,2015), Judge Shelby found that a debt collector violated the FDCPA for failing to give meaningful disclosure in its voicemail messages, but did not violate the TCPA because the calls were manually dialed.  As to the former, Judge Shelby found that the debt collector failed to give the “tripartite” disclosure:  name, company, and purpose of call.

The Tenth Circuit has not construed “meaningful disclosure,” but courts interpreting Section 1692d(6) have “uniformly held that it requires a debt collector to disclose the caller’s name, the debt collection company’s name, and the nature of the debt collector’s business.” The court agrees with the ample case law on this point. Merely stating the debt collector’s personal name is not meaningful to the debtor. Under the least-sophisticated-consumer standard, it fails to notify the consumer about the source and purpose of the call. It says nothing of the debt or the repayment process.  For the disclosure of the caller’s identity to be meaningful, it must at least include the caller’s name and the company’s identity, and describe the debt collector’s business.  Of the fourteen transcribed voicemail messages submitted into evidence, only five disclose the law firm’s name and none disclose the nature of the debt collector’s business. Some voicemails simply state the caller’s personal name and contact information and ask the Hilgenbergs for a call back. What’s more, three separate debt collectors called the Hilgenbergs. The Hilgenbergs were not required under the statutory framework to remember and cross reference these calls over a ten-month period.  Some consumers receiving Elggren & Peterson’s calls could recollect the prior calls and letters and understand that the calls regarded a debt. But the least-sophisticated-consumer standard requires the court to consider what a consumer with below-average sophistication would perceive. The least sophisticated consumer-and even an average consumer—could easily forget or mix up the identity of a debt collector, especially when the messages do not clearly reference the debt.  Elggren & Peterson failed to make meaningful disclosures in the fourteen transcribed voicemail messages.

As to the latter, he District Court granted summary judgment to the Defendant on the Plaintiff’s TCPA claim on the basis that the manually dialed calls did not violate the TCPA.   The District Court, however, granted it under the narrow basis of the burdens applicable to Rule 56, rather than on the broader basis that manually dialed calls never trigger the TCPA.

The Hilgenbergs allege that Elggren & Peterson violated the TCPA, which governs calls made by an “automatic telephone dialing system.” . . .The parties part ways on the definition of “automatic telephone dialing system” and the scope of the statute. Elggren & Peterson argues that the statute does not apply to manually placed phone calls. More specifically, the law firm argues that the statute does not apply to its phone calls to the Hilgenbergs because the phone calls were not made using autodialer technology. Indeed, it is undisputed that each phone call to the Hilgenbergs was manually placed. Therefore, Elggren & Peterson would be entitled to summary judgment if the court adopted the law firm’s narrow interpretation of the statute.   The Hilgenbergs, for their part, maintain that the statute applies to capacity and not use. They assert that the statute reaches phone calls made by phone systems that have the capacity to make automatic phone calls, even if the phone calls at issue were manually placed. Even assuming the court adopted the Hilgenbergs’ interpretation, there is no evidence that Elggren & Peterson’s phone system has the capacity to make automatic calls.   The Hilgenbergs concede that they cannot prove that Elggren & Peterson’s phone system has autodialer capacity. They argue that their failure of proof stems from Elggren & Peterson’s refusal to produce evidence regarding its phone system. In particular, the Hilgenbergs point to Elggren & Peterson’s refusal to answer interrogatories about the phone system and to identify witnesses that could provide information about the phone system. For example, the Hilgenbergs asked the law firm in an interrogatory to “[i]dentify and describe, in detail, all electronic, mechanical, manual, software, and other systems, methods, and procedures you use, maintain, or operate to make telephone calls in connection with the collection of debt.” Elggren & Peterson responded, “Representatives manually dial each phone call using a basic phone system.” When asked about the law firm’s phone system, Mr. Elggren stated that he did not remember the make or model because the law firm purchased the system “some time ago.”    Discovery is intended “to facilitate the free flow of information between parties.” . . . The time for discovery disputes has passed, however. . .  [T]he Hilgenbergs concede that they cannot prove the phone system has autodialer capacity, but that the court should excuse their failure of proof because Elggren & Peterson skirted its duty to produce relevant discovery. In essence, the Hilgenbergs seek to avoid summary judgment based on undiscovered facts. If the court denied summary judgment here, the Hilgenbergs would proceed to a trial on the TCPA claims without any evidence that the TCPA governs Elggren & Peterson’s conduct. In sum, the Hilgenbergs have failed to show that they can carry their ultimate burden of persuasion at trial.  . . .The court confines itself to the Rule 56 standard and grants summary judgment in favor of Elggren & Peterson. The TCPA claim is dismissed.