Santander Consumer USA, Inc. called consumer Heather Nelson’s cellular telephone one thousand twenty-six (1,026) times and left pre-recorded messages an additional one hundred sixteen (116) times during a one year period while attempting to collect a consumer debt arising from loans secured by two motor vehicles — a van and a truck. The Court entered judgment against Santander in the amount of five hundred and seventy-one thousand dollars ($ 571,000) for the one thousand one hundred forty-two (1,142) violations of the Telephone Consumer Protection Act (“TCPA”).
The Telephone Consumer Protection Act (“TCPA”) prohibits calls to cellular telephones where the caller uses an automatic dialing system and/or leaves pre-recorded messages unless the recipient provided the caller prior express consent. The Telephone Consumer Protection Act (“TCPA”), 15 U.S.C. Section 227(b)(1)(A)(iii) makes it :
“unlawful for any person … to make any call (other than a call … made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice … to any telephone number assigned to a … cellular telephone service … or any service for which the called party is charged for the call.”
TCPA, 15 U.S.C. Section 227(b)(1)(A)(iii). If you are not already familiar with the fundamentals of the TCPA and how it relates to debt collection calls, click here for information about your situation.
- FACTUAL BACKGROUND
Santander purchased HSBC Auto Credit including HSBC’s loan portfolios which included Ms. Nelson’s accounts. Unfortunately for Santander, Ms. Nelson had never provided her cellular telephone number in her loan application with HSBC Auto Credit. Nor is there any indication that Ms. Nelson ever provided her cellular telephone number to HSBC Auto Credit or Santander Consumer USA, Inc.
The parties disputed whether Ms. Nelson verbally told Santander not to call her cell phone number. Fortunately for Ms. Nelson, on April 13, 2010, Ms. Nelson wrote a letter to Santander stating:
“You may not at anytime contact me at any work number listed. This includes [four telephone numbers including Ms. Nelson’s cellular telephone number]. Any conversations need to be addressed in writing.”
Nelson v. Santander Consumer USA, Inc., 931 F.Supp.2d. 919 (W.D. WI 2013). Santander continued to call Ms. Nelson on her cell phone after they received her letter.
On May 29, 2010, Santander repossessed Ms. Nelson’s truck. Between March, 2010, and April, 2011, Santander called Ms. Nelson’s cell phone one thousand twenty-six (1,026) times. One hundred and sixteen (116) of these calls also resulted in prerecorded messages left on Ms. Nelson’s cell phone voicemail.
Santander Consumer USA, Inc. used a telephone system manufactured by Aspect. Aspect’s telephony system uses computer software to route and place inbound and outbound calls. The Court found that “Aspect has the capacity to (1) store telephone numbers and then call them; and (2) perform ‘predictive dialing’ and ‘preview dialing’.” (emphasis added).
Aspect’s predictive dialing system schedules the dialing of phone numbers using an alogrithm to predict when a collection employee will be available to receive the next completed call. To facilitate that method of dialing, Santander created lists of customer telephone numbers to be called on a particular day. In preview dialing, an employee chooses a telephone number by clicking on a computer screen and the system calls it.”
The Court also found that Santander’s “employees never called plaintiff by pressing numbers on a keypad.” This lack of human intervention is the hallmark of automatic dialing systems.
MS. NELSON’S MOTION FOR PARTIAL SUMMARY JUDGMENT
Ms. Nelson filed a motion for partial summary judgment. Ms. Nelson’s motion requested that the Court enter a judgment against Santander for Santander’s violations of the TCPA based upon the evidence (documents, depositions, affidavits, etc.) already in the record. Summary judgment allows the Court to rule upon the factual disputes without the parties proceeding to trial where there are not any disputed issues of fact.
Santander argued that the Court should deny Ms. Nelson’s motion for summary judgment because there were disputed issues of fact : (1) whether Ms. Nelson qualifies as a “called party”; (2) whether Ms. Nelson gave Santander consent to call her; and (3) whether Santander uses an “automatic telephone dialing system”. Santander also disputed Ms. Nelson’s entitlement to enhanced statutory damages.
Santander argued that Ms. Nelson was not a “called party” within the meaning of the TCPA, Section 227. The cellular phone account was solely in Ms. Nelson’s husband’s name although Ms. Nelson was the person who used the cell phone which was assigned the number that Santander called. According to Santander, Ms. Nelson “has not shown that she has ‘standing’ to sue violation of Section 227(b)(1)(A)(iii). The Court commented that Santander’s argument was “imaginative but not persuassive.”
The Court distinguished between Santander’s argument that Ms. Nelson lacked standing and the question whether Ms. Nelson had a cause of action (basis for suing) under the TCPA and ruled in Ms. Nelson’s favor on both questions.
The Court observed that Ms. Nelson had standing if she was injured by Santander’s conduct and her injury can be redressed by winning her lawsuit. The Court ruled that there was “no question” whether Ms. Nelson had standing because she alleged that Santander called her cell phone over 1,000 times and seeks statutory damages for each of the calls.
The Court issued an insightful opinion into the more debatable question — whether Ms. Nelson had the right to sue Santander for violations of the TCPA.
Santander relied upon the opinion in Soppet v. Enhanced Recovery Co., LLC. to support its argument that the phrase “called party’ as used in Section 227(b)(1) means the person subscribing to the called number at the time the call is made.” Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 643 (7th Cir. 2012). Basically, Santander argued that Ms. Nelson was not the “called party” because the cell phone account was in her husband’s name, not hers.
The Court distinguished Soppet as a “red herring” because the issue in Soppet was who had the authority to give consent to call Ms. Soppet’s cellular telephone number. The issue in Soppet was not about whether plaintiff could sue for violations of the TCPA (Section 227).
In Soppet, a cell phone customer gave the creditor permission to call the cell phone number at issue in the Soppet case. Subsequently, the first cell phone customer’s service became disconnected. Eventually, the cell phone number at issue was “recycled” and reassigned to Soppet. In Soppet, Enhanced Recovery argued that the “called party” be read to mean the person that Enhanced Recovery intended to call so that the first cell phone customer’s consent remained valid long after the cell phone number was reassigned to Soppet.
In Nelson v. Santander, the Court implicitly rejected some of the dicta in Soppet which could be read to suggest that a person who receives calls unsolicited calls on his or her cellular telephone may somehow be barred from suing the caller because someone else’s name appears on the account associated with the cell phone number. The Nelson Court relied upon the plain language of the TCPA. The Court ruled :
“Noting in [Section] 227(b)(1) limits the protections of the statute to the owner of the phone. Rather, that section prohibits the use of automatic dialing ‘to any telephone number assigned to a … cellular telephone service’ regardless who answers or receives the call. Further, 47 U.S.C. [Section] 227(b)(3), which creates a private right of action for violations of the statute, does not limit lawsuits to those brought by “subscribers’ or ‘called parties,’ but applies to ‘a person or entity’. ***”
Santander also argued that there were questions of fact whether Ms. Nelson consented to Santander (or Santander’s predecessor HSBC) calling her cell phone. For a detailed discussion about whether debt collectors can call your cell phone, please click on the highlighted portion of this sentence.
The Court ruled that the issue whether Ms. Nelson consented to calls on her cellular phone constitutes an affirmative defense. The Federal Communications Commission has stated that :
“the creditor should be responsible for demonstrating that the consumer provided express consent’ because the creditor (e.g., Santander) is “in the best position to have records kept in the usual course of business showing such consent.”
In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 565 Parag. 10 (Jan. 4, 2008). More importantly to the Nelson Court, the district courts in the Seventh Circuit, have uniformly adopted the position that the issue whether the person who received the calls consented to the calls is an affirmative defense.
Unfortunately for Santander, Santander did not attempt to raise this affirmative defense until it filed a motion to amend its answer to Ms. Nelson’s complaint one month after Ms. Nelson filed her motion for summary judgment. The Court held that Santander had waived the defense.
In any event, the Court found that Ms. Nelson sent a letter dated April 13, 2010, to Santander requesting that Santander stop calling her and she listed her telephone numbers including her cellular telephone number.
AUTOMATIC TELEPHONE DIALING SYSTEM (“ATDS”)
The Federal Communications Commission (“FCC”) has interpreted the term “automatic telephone dialing system” to include “predictive dialers” which the FCC defines as :
“equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls. The hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.”
In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C.R. 14014, 14091-93 (July 3, 2003) (Court’s emphasis). Santander argued that the Nelson Court should disregard the FCC’s interpretation of “automatic telephone dialing systems” because Congress did not grant the FCC authority to implement Section 227 of the TCPA and because the FCC’s interpretation is inconsistent with the statutory language.
The Nelson Court criticized Santander’s argument as “comes perilously close to violating Fed. R. Civ. Pro. 11.” The Court reminded Santander that the United States Circuit Court of Appeals for the Seventh Circuit has ruled that “the Hobbs Act, reserves to the courts of appeals [on direct review] the power ‘to enjoin, set aside, suspend (in whole or in part), or to determine the validity of’ all final FCC orders.” Citing CE Design, Ltd. v. Prism Business Media, Inc., 606 F.3d 443, 446, 449 n.5 (7th Cir., 2010). The CE Design court expressly ruled that “a litigant can’t avoid the Hobbs Act’s jurisdictional bar simply by accusing an agency of acting outside its authority.” Id at 449.
The Nelson Court noted that Defendant cited Griffith for its definition of automatic dialing equipment under Section 227(a)(1) and reminded defendant’s counsel that “they have a duty under Rule 11 to refrain from making a legal contention unless it is ‘warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law’ and a duty under SCR 20:3:30 to “disclose to the [court] authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client’.”
The Court addressed Defendant’s remaining arguments which Defendant raised to attempt to negate the evidence introduced by Ms. Nelson to support her argument that Santander used “automatic dialing equipment” to place the calls at issue in her case.
Ms. Nelson relied upon the testimony of Santander’s Senior Vice President of Servicing, Mr. Wayne Nightengale. Santander argued that Mr. Nightengale “is neither a representative of Aspect [the company that created the telephone system] nor is he a telephone communications expert” and Ms. Nelson’s counsel did not ask Mr. Nightengale any questions establishing the foundation for the testimony. Usually, the witness must have direct personal knowledge as to how the equipment functioned or it is inadmissible hearsay.
In this case, Ms. Nelson’s counsel served Santander with a Notice of Deposition pursuant to Fed. R. Civ. Pro. 30(b)(6) which allows an opposing party to depose a “corporate representative” who testifies on behalf of the corporation. The corporation being deposed (in this case Santander) gets to chose the person who will testify on the corporation’s behalf (in this case Ms. Nightengale.)
The corporation’s designation of that person to testify waives any objection to lack of foundation that the witness testifies to. Square D. Co. v. Breakers Unlimited, Inc., 2009 WL 1661582, *1-2 (S.D. Ind. 2009); Bowoto v. Chevron Corp., 2006 WL 2455740, *1 (N.D. Cla. 2006).
Finally, the Court rejected Santander’s argument that Ms. Nelson failed to show which calls it placed to her employing predictive dialing and which calls Santander made through “preview dialing”. (“Preview dialing” allows an employee rather than a computer to choose which number to dial.) The Court held that :
“Regardless whether preview dialing falls outside the scope of [Section] 227(a)(1) and the FCC’s order, I agree with the plaintiff that defendant’s argument is another red herring. Under both the statute and the order, the question is not how the defendant made a particular call, but whether the system it used had the ‘capacity’ to make automated calls.”
Nelson, pg. 18-19, citing Satterfield v. Simon & Schuster, Inc, 569 F.3d 946, 952 (9th Cir. 2009) (“[A] system need not actually store, produce or randomly call or sequentially generated numbers, it need only have the capacity to do it.”)
If you are receiving robo-calls on your cell phone and want to learn more about the basics of how the TCPA protects cell phones from unwelcome robo-dialed calls and pre-recorded messages and even SMS texts, please click on the Big Blue Box immediately below.
TIP OF THE HAT TO PLAINTIFF AND HER COUNSEL
As Jimmy Cliff wrote, “The Bigger They Come, The Harder They Fall”. Congratulations to Ms. Nelson and her lawyers for an excellent decision and for establishing additional precedence which helps to combat cell phone harassment.
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