With American legislature changing on a daily basis, it is not surprising to find that many of the laws out there contradict each other and courts are often called upon to determine which statute takes precedence. Such was the case in a recent lawsuit involving auto-calls made on behalf of State Farm.
In May 2007, Clara Betancourt applied for a car insurance policy with State Farm Mutual Automobile Insurance Company. While she was applying for the car insurance policy, a State Farm agent asked her if she would like to pay using a State Farm credit card. Betancourt agreed and the agent used the information provided by Betancourt for the car insurance application to apply for the credit card on Betancourt’s behalf. Betancourt provided the agent with her home phone number, her cell phone number, and her work phone number.
Betancourt testified that she provided these phone numbers to State Farm as emergency contact information to be used only “for an emergency or something serious.”
The three phone numbers that Betancourt provided all belonged to Fredy Osorio, with whom she has lived for many years and with whom she has a son.
When Betancourt failed to make a timely payment of the minimum balance on her credit card in November 2010, State Farm authorized FMS Inc., a collection agency, to attempt to collect the debt. State Farm provided FMS with Betancourt’s phone numbers and FMS proceeded to make 327 auto-dialed calls to these phone numbers in a six-month period. State Farm alleges that at no time did anyone answering the phone say that the number did not belong to Betancourt. By contrast, Osorio testified that he told State Farm agents to “Please stop calling” on two occasions.
As the subscriber to the telephone numbers, Osorio sued State Farm for alleged violations of the Telephone Consumer Protection Act (TCPA).
State Farm, in turn, sued Betancourt for breach of contract for failure to pay her credit card bill and negligent misrepresentation by giving Osorio’s numbers as her own, among other allegations. The district court granted summary judgment to State Farm on all counts, but Betancourt and Osorio appealed the decisions and the Eleventh Circuit Court of Appeals has since reversed all of these rulings and remanded the cases for further proceedings.
On appeal, State Farm argued that the Fair Debt Collection Practices Act (FDCPA) supersedes the TCPA, and as a result, auto-calls regarding debt-collection are not subject to the restrictions of the TCPA. The appellate court rejected this argument and maintained that, if Osorio did in fact tell State Farm to stop calling, that such an oral revocation of consent to call that phone number is valid. However, State Farm alleges that Osorio did no such thing so the appellate court remanded the case for further proceedings to determine the truth of the matter.
State Farm filed for summary judgment because neither Betancourt nor Osorio were charged for any of the calls made on auto-dial. However, the TCPA specifically prohibits calls made “to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” The appellate court therefore ruled that State Farm was still in alleged violation of the TCPA when it auto-dialed Osorio’s phone number without his consent, despite the fact that he was never charged for the calls.
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