There's nothing wrong with pushing your luck, in theory. But once in a while luck pushes back.
A few weeks back Ocwen obtained an almost-great ruling in Wilfredo Gonzalez v. Ocwen Loan Servicing, Case No: 5:18-cv-340-Oc-30PRL, Doc. No. 11, (M.D. Fla. Sept. 5, 2018). There the Court held that the 2003 and 2008 Predictive Dialer rulings were overturned by ACA Int'l, but declined to dismiss the case at the pleadings stage because the complaint alleged the plaintiff encountered a pause before a live agent came on the line suggesting the use of a random or sequential number generator, apparently.
Since the Court had gone with it down the road of the 2003 ruling being overturned, the Defendant went back to the well via a motion for reconsideration and asked the Court to also find that the 2003 ruling had been overturned in all respects--including the FCC's finding in that order that the TCPA applies to debt collection calls. Might as well take a crack right?
Well, in an order entered this morning--and found here Gonzalez v Ocwen II-- the Court rejected that request reminding the Defendant that it had already found that "the TCPA applies to any person or entity that violates the statute." And "any person" includes debt collectors, apparently.
This is not a very surprising result as the statute is (mostly) content neutral as written and numerous courts have found that debt collection falls within the purview of the TCPA, even without reference to the FCC's 2003 ruling. That said, there remains a very real argument that debt collection calls do not fall within the TCPA for practical reasons--debt collectors do not use random or sequentially generated numbers to collect debts. And only dialers capable of generating such numbers are subject to the statute. I mean, probably.
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