A District Court judge in Texas has granted a motion for summary judgment filed by the defendants in a Fair Debt Collection Practices Act and Telephone Consumer Protection Act case, ruling that three text messages and three phone calls over the span of eight weeks were not harassing even though the attempts were intended for someone else, and even a least sophisticated consumer would not have been confused because the messages referenced someone with a different name than the plaintiff’s.
The background: The plaintiff, named Audrey, received three text messages intended for someone named Shaun that were attempts to collect on an unpaid credit card debt. After receiving the third message, the plaintiff replied “stop” and the defendant did not send another text. The defendant did make three calls to the plaintiff over the course of five weeks, each of which went to voicemail.
- The plaintiff filed suit, claiming these attempts violated the FDCPA’s prohibition against harassing conduct and falsely represented the character or legal status of a debt. The plaintiff also alleged the messages violated the TCPA because they were sent without consent using an automatic telephone dialing system.
The ruling: Having previously denied a motion to dismiss filed by the defendants, Judge Andrew S. Hanen of the District Court for the Southern District of Texas now disagreed with the plaintiff on all counts, determining that the volume and nature of the messages did not amount to harassment. “The Court finds that the communications at issue in this case are not harassing,” he wrote.
- Specifically, over eight weeks, the plaintiff received only three text messages and three phone calls. On top of that, none of the messages were threatening or abusive in tone.
- Further, Judge Hanen noted that each message identified the intended recipient as someone else, clearly signaling the messages were not directed at the plaintiff. Therefore, even under the FDCPA’s “least sophisticated consumer” standard, confusion was not likely.
- As for the TCPA claims, Judge Hanen ruled there was insufficient evidence to establish that the defendant used an ATDS.
