A district judge in Wisconsin last month denied a plaintiff’s petition for class certification in a TCPA case concerning debt collection calls. In an epic footnote discussing his reasoning, the judge noted that the FCC has been lacking in clarifying its rules on consent under the TCPA, and that efforts have revealed that the regulator “appears to be allergic to brevity and clarity.”

The case, Balschmiter v. TD Auto Finance, alleged TCPA violations in automated debt collection calls to a cell number made by an auto loan servicer.

In April 2012, the plaintiff’s boyfriend purchased a used car; the loan was subsequently serviced by TD Auto Finance (TDAF), and the boyfriend was the only signatory on the loan. He went into default on the loan in July 2012. In 2012 and 2013, Balschmiter called TDAF on his behalf to make payments on the loan, inquire about due dates, etc.

The plaintiff, after making calls to TDAF, began to receive autodialed debt-collection calls from TDAF regarding the loan. The parties dispute whether the plaintiff gave prior express consent — or could give prior express consent, for that matter — to receive these types of calls during her conversations with TDAF. TDAF’s records indicated that, at least for one particular number, the plaintiff gave consent to be called by TDAF at that number, and then revoked consent at a later date. Nevertheless, the plaintiff eventually changed her number in an attempt to avoid future calls, apparently to no avail.

After determining that TDAF was, indeed, using an autodialer, the plaintiff alleged that according to TDAF’s own policy, non-customer telephone numbers should never be entered into the autodialer fields. Those numbers may only be dialed manually, and are typically listed in the account notes. So a suit was filed that sought class action status for other consumer similarly situated.

The judge, after lengthy discussion of the possibility of certifying this particular suit as a class action, denied the request. Judge J.P. Stadtmueller, in the Eastern District of Wisconsin, wrote, “The putative class is not ascertainable and the individual issues of consent would predominate over issues common to the class. Further, because prior express consent is an individualized issue unfit for classwide resolution, certification under Rule 23(c)(4) must be denied as well.”

But in “taking a peek at the merits” of the case, Judge Stadtmueller noted that it’s no wonder that the parties in this case “have spilled a lot of ink on the subject.”

“Despite the FCC’s 2008 TCPA Order explaining who may give prior express consent to receive autodialed debt-collection calls, which seems to hold that only the debtor can provide prior express consent — and, only during the transaction that gave rise to the debt — the law on this subject is far from clear,” wrote Stadtmueller. But he went even further in a footnote to that very paragraph.

Stadtmueller noted that in the lower court decision in Mais (which was recently overturned by the 11th Circuit Court) the district judge found that the FCC’s 2008 TCPA order “was not entitled to deference” because the FCC’s construction of the TCPA was “inconsistent with the statute’s plain language.” But that wasn’t the judge’s fault, Stadtmueller opined.

“Much of the confusion is directly attributable to the FCC’s own guidance on the TCPA, which appears to be allergic to brevity and clarity,” he wrote. Stadtmueller then noted one of the FCC’s own Commissioner’s words for a call for greater clarity.

FCC Commissioner Michael O’Reilly conceded on an official blog post this year that “Indeed, the problems caused by this lack of clarity are evidenced by an increasing number of TCPA-related law suits and a growing backlog of petitions pending at the FCC.” O’Reilly said that the FCC needs to address its TCPA petition backlog and also look at what it has published in the past, noting, “Some of these prior interpretations of the TCPA, while well-meaning, may have contributed to the complexity by enlarging the scope of potential violations.”

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