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Maria Santino and Giuseppe Santino v. Nco Financial Systems

February 23, 2011

MARIA SANTINO AND GIUSEPPE SANTINO, PLAINTIFFS,
v.
NCO FINANCIAL SYSTEMS, INC., DEFENDANT.



The opinion of the court was delivered by: John T. Curtin United States District Judge

By order of Chief United States District Judge William M. Skretny dated November 5, 2010 (Item 27), this matter has been reassigned to the undersigned for all further proceedings. Plaintiffs Maria and Giuseppe Santino claim that defendant NCO Financial Systems, Inc. ("NCO"), a debt collection agency, made repeated telephone calls to their home phone attempting to collect a debt which plaintiffs were not obligated to pay, in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., and the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227 (see Item 1). Defendant has moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for partial judgment on the pleadings dismissing plaintiffs' TCPA claim (Item 14).

BACKGROUND

Plaintiffs allege in their complaint that NCO made "repeated annoying and otherwise harassing telephone calls" to plaintiffs' home telephone for the purpose of collecting a debt on behalf of a creditor of a person named "Hazel Meyers." Item 1, ¶¶ 17-21. In July 2009, plaintiff Maria Santino spoke with a representative of NCO, who identified himself as "Mr. Parker." Ms. Santino informed Mr. Parker that plaintiffs did not know anyone named Hazel Meyers, and told him to stop calling. According to plaintiffs, Mr. Parker became belligerent, and called Ms. Santino a "liar." Id. at ¶ 23. Plaintiffs allege that thereafter NCO "began calling more frequently . . . , making daily telephone calls." Id. at ¶ 24.

Plaintiffs filed this action on November 13, 2009, seeking actual and statutory damages, costs, and attorneys' fees pursuant to the FDCPA in Count One, and the TCPA in Count Two. Id. at ¶¶ 30-38. Defendant now moves for partial judgment on the pleadings dismissing the TCPA claim as a matter of law on the ground that the alleged telephone calls are subject to an express exemption from the TCPA's prohibitions, as set forth in the regulations promulgated and interpreted by the Federal Communications Commission ("FCC").

For the reasons that follow, defendant's motion is granted.

DISCUSSION

I. Judgment on the Pleadings

Rule 12(c) provides that "[a]fter the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c).

The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion for failure to state a claim. In both postures, the district court must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor. Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001) (citations omitted). To survive a motion to dismiss, a claim "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___U.S.___,___, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

In this case, defendant contends that plaintiffs' TCPA claim is implausible on its face because the telephone calls at issue in this case--i.e., prerecorded calls intended solely for the collection of a debt--are specifically exempted from the TCPA's coverage by rule and order of the FCC.

II. Telephone Consumer Protection Act

In an effort to address consumer privacy concerns brought about by the "immense" growth of the telemarketing industry, Congress enacted the TCPA in 1991 making it unlawful for any person within the United States "to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempt by rule or order by the [FCC] . . . ." 47 U.S.C. § 227(b)(1)(B); see S. REP. NO. 102-178, P.L. 102-243, at 2 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1969-70. The statute further provides that the FCC: may, by rule or order, exempt from the requirements of paragraph (1)(B) of this subsection, subject to such conditions as the [FCC] may prescribe--

(i) calls that are not made for a commercial purpose; and

(ii) such classes or categories of calls made for commercial purposes as ...


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