Judge Joseph Bianco
In its effort to collect on credit card debt owed by Levy, debt collector Receivables Performance Management (RPM) bought Levy’s cell phone number from Trans Union. RPM used an automatic telephone dialing system to make “robo-calls” to Levy’s phone. In addition to the Fair Debt Collection Practices Act’s violation, Levy alleged RPM violated the Telephone Consumer Protection Act (TCPA) by robo-dialing his cell phone at least 284 times over four months. District court granted Levy summary judgment on his TCPA claim. There was no evidence of an emergency situation exempting the calls from TCPA’s ban on automatically dialled calls to cell phones. Nor did Levy give RPM prior express consent. RPM obtained the dialled number from a third-party rather than from Levy. It was also undisputed that the dialled number was different from that Levy provided on his initial credit card application. Despite initiating calls to RPM and, at least once, verifying the cell phone number that he was calling from, Levy took no affirmative act rising to the level of prior consent. However, Levy’s entitlement to treble damages on his TCPA claim could not be determined given genuine factual issues as to whether RPM willfully violated the TCPA.
