A District Court judge in Florida has denied a motion to certify a class-action lawsuit in a Telephone Consumer Protection Act case in which an individual received wrong number calls on his cell phone from a debt collector using an automated telephone dialing system.
A copy of the ruling in the case of Sliwa v. Bright House Networks can be accessed by clicking here.
The defendant was accused of contacting the plaintiff on his cell phone using an ATDS without first obtaining the proper consent to do so, in violation of the TCPA. The defendant was actually seeking to contact someone else in attempting to collect on an unpaid debt. The customer that the defendant was attempting to reach had given the plaintiff’s cell phone number as the customer’s home phone number. The defendant began calling the number trying to get in touch with the customer, but reached the plaintiff instead. The defendant was accused of making 14 calls after the plaintiff informed the defendant that it had the wrong phone number.
In a 58-page ruling, the judge analyzes a number of different arguments laid out by the defense, which challenge the plaintiff’s determination that there are more than 9,000 potential non-customers who received calls from the defendant.
One of the key arguments is the code assigned to calls made to bad phone numbers, or BP calls. The plaintiffs contend that calls logged with that code are indicative of a wrong number, whereas the defendants counter that there are many different reasons why a BP code could be assigned to an account, which makes determining the size of a potential class impossible.
“Indeed, when presented with similar evidence regarding ‘wrong number’ call log designations, this Court recognized that ‘in the debt collection industry ‘wrong number’ oftentimes does not mean non-consent because many customers tell agents they have reached the wrong number, though the correct number was called, as a way to avoid further debt collection,’ ” wrote Judge John Steele of the District Court for the Middle District of Florida, Fort Myers Division. “The difficulty in ascertaining this information is compounded by the fact that the phone numbers at issue were initially provided to Bright House by consenting customers.”
