How Can I Harass You If You Won’t Answer The Phone?

18 Calls In 13 Days Not Harassment

18 Calls In 13 Days Not Harassment

Chisholm v. AFNI
Defendant’s MSJ granted – AFNI allegedly made autodialed, prerecorded debt collection calls to plaintiffs mobile, multiple times per day, despite plaintiff’s request calls cease. It was later revealed – according to the court – plaintiff had a delinquent DirecTV account, and despite plaintiff’s recollections, plaintiff’s own phone records showed only 18 calls over 13 days:
– one answered, but plaintiff hung-up; and
– 17 unanswered.
The court found no evidence that plaintiff had revoked consent on the answered call.

The calls were made between 9:30 and 19:00 (with at least three hours between attempts):
• 30Apr2015 (Th) – 2 calls
• 01May2015 (Fr) – 1 call
• 02May2015 (Sa) – 1 call
• 04May2015 (Mo) – 2 calls
• 05May2015 (Tu) – 3 calls
• 06May2015 (We) – 1 call
• 07May2015 (Th) – 2 calls
• 08May2015 (Fr) – 2 calls
• 09May2015 (Sa) – 1 call
• 11May2015 (Mo) – 1 call
• 12May2015 (Tu) – 1 call
On 18 May, AFNI received a letter informing them Plaintiff was represented by an attorney, and AFNI immediately ceased calling.

The court found the number of calls alone could not violate the FDCPA, there must be some other ‘egregious’ behavior to constitute harassment. Plaintiff produced no evidence of harassing, threatening, or vulgar language.

On TCPA claims, the court found that knowing provision by Plaintiff of his number to DirecTV* evidenced prior express consent. And since the one call answered was a hang-up, there was no evidence consent had been revoked.
[D. N.J. 1:15-cv-03625]
jbho: the importance of call recording? Apparently, AFNI was able to produce a recording of the one connected call, and use this to show plaintiff didn’t say anything.

* Although Plaintiff contested whether his number was provided at the time he created his account, he was unable to produce evidence he provided it at some later date.

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