In Iniguez v. CBE Group, Inc., 2013 WL 6331207 (E.D.Cal. 2013), Judge Mendez denied a Motion for Reconsideration that sought to argue his previous conclusion that the TCPA does, in fact, apply to auto-dialed debt collection calls to cellular telephones.
The three cases cited and briefly discussed by CBE in this motion for reconsideration fail to show how manifest injustice would result if the Court declines to reconsider its order, and certainly do not support CBE’s contention that debt collection calls are categorically exempt from the TCPA. ¶ In Martinez v. Johnson, a case out of the District of Utah,FN1 the plaintiffs alleged a violation of TCPA based on calls made by defendant for debt collection purposes arising out of an established business relationship. Although plaintiffs contended that the calls were made to a cell phone, that court found that there was no evidence that the phone contacted was, in fact, a cell phone rather than a landline. [FN1. Martinez v. Johnson, 11–CV–157–DN, 2013 WL 1031363 (D.Utah Mar.14, 2013).] The Court found that a regulatory exemption applied to the calls, and therefore the TCPA did not prohibit them. However, the provision relied on by the district court in Martinez shows that it is inapplicable to the case at hand. ¶ In Martinez, the Court cited 47 CFR 64.1200(a)(2) (iii-iv) as the source of the exemption. The provision in effect at the time, recently amended and recodified as 47 CFR 64.1200(a)(3), specifically stated that no person may “initiate any telephone call to any residential line unless the call is made for a commercial purpose but does not include or introduce an unsolicited advertisement, or constitute a telephone solicitation, or is made to any person with whom the caller has an established business relationship at the time the call is made.” ¶ By the explicit language of the regulation, the exemption relied on by the court in Martinez applies to residential lines. It does not reference calls made to cell phones, which are discussed elsewhere in the regulation. As stated, the TCPA makes a clear distinction between the provisions that apply to residential lines and those that apply to numbers assigned to a cellular telephone service. ¶ Comparing 47 U.S.C. § 227(b)(1)(A)(iii), which prohibits calls to any telephone number assigned to a cellular telephone service, unless with prior express consent or for emergency purposes, to 47 U .S.C. § 227(b)(1)(B), that prohibits calls to any residential telephone line unless it is for emergency purposes, with consent, or expressly exempted. ¶ As such, the Martinez case does not apply to the claims at issue in the case before this Court, and it provides no support for CBEs motion for reconsideration. ¶ The second case cited by CBE in the motion for reconsideration is Roy v. Dell Financial Services, LLC.FN2 That is out of the Middle District of Pennsylvania. In that case, the district court relied on the same exemptions as the Martinez Court to find that the Plaintiff’s allegations regarding debt collection calls did not state a claim for a violation of the TCPA. [FN2. Roy v. Dell Fin. Servs., LLC, 3:13–CV–738, 2013 WL 3678551 (M.D.Pa. July 12, 2013).] Again, there is no evidence in that opinion that the plaintiff claimed, or that the court assumed, that the calls were being made to a cellular telephone. ¶ CBE relies on, in the motion for reconsideration, perhaps one poorly worded sentence in Roy that states, “The FCC has determined that all debt-collection circumstances are excluded from the TCPA’s coverage.” Roy, 2013 WL 3678551 at *8. In the Roy opinion, the district court cited to two cases to support this conclusion. Again, the cases that the district court in Roy cited do not support the conclusion reached by the Roy Court.
In Dayhoff v. Wells Fargo Home Mortg., Inc., 2013 WL 6283583 (M.D.Fla. 2013), Judge Dalton said the same thing:
The Defendant contends that the Plaintiff’s TCPA claim fails as a matter of law because debt-collection activities are “excluded” from the TCPA’s coverage. (Doc. 14, pp. 4–5.) Defendant’s argument is too broad. The FCC only excludes debt-collection calls from the TCPA if they are made to a residential telephone line. Meadows v. Franklin Collection Serv., Inc., 414 F. App’x 230, 235 (11th Cir.2011); Ashley v. Gen. Elec. Capital Corp., No. 2:13–CV–353–FTM–29, 2013 WL 6133562, at *3 (M.D.Fla. Nov.21, 2013) (holding that the debt-collection exemptions only “apply to calls made to residential telephone lines”); Levy v. Receivables Performance Mgmt., LLC, No. 11–CV3155 JFB ARL, 2013 WL 5310166, at *6 (E.D.N.Y. Sept.23, 2013) (denying motion to dismiss TCPA claims based on debt collection calls to cellular phone); Breslow v. Wells Fargo Bank, N.A., 857 F.Supp.2d 1316, 1320–22 (S.D.Fla.2012) (same); e.g., Kahn v. Portfolio Recovery Assocs., LLC, No. 8:10–cv–2399–T–26TGW, 2001 WL 223870, at *1 (M.D.Fla. Jan. 24, 2011) (same). Plaintiff has stated a plausible TCPA claim based upon the “95 unauthor-ized telephone calls to Plaintiff’s cell telephone.” (Doc. 2, ¶¶ 13–31.) Accordingly, the motion to dismiss Plaintiff’s TCPA claim is due to be denied.