Call Volume Alone Does Not Necessitate a Violation of the FDCPA

A decision from a New Jersey district court serves as a reminder that call volume alone will not support a violation of the FDCPA.  In Chisholm v. Afni, Inc., the issue before the court was “whether a series of 18 telephone calls from a debt collector, of which 17 were unanswered and one where the recipient hung up, unaccompanied by harsh or threatening language or back-to-back calls could reasonably be found to violate the FDCPA.”  Chisholm v. Afni, Inc., 2016 U.S. Dist. LEXIS 162303, *1 (D.N.J. Nov. 22, 2016).  The court held they could not.  In so ruling, the court reviewed the calls under the provisions of sections 1692d and f of the FDCPA.  Section 1692d makes unlawful “any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.”  15 U.S.C. §1692d.  The section also prohibits certain specific conduct including “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.”  15 U.S.C. §1692d(5).  Section 1692f is the FDCPA’s catch all provision for unfair conduct.

In reviewing the calls, the court first acknowledged that the number, frequency, and timing of the calls is an important factor, but not the only factor that must be considered.  While “[a]ctual harassment or annoyance turns on the volume and pattern of calls made,”… “courts around the country have held that the number of calls alone cannot violate the FDCPA; a plaintiff must also show some other egregious or outrageous conduct in order for a high number of calls to have the ‘natural consequence’ of harassing a debtor.” Chisholm at *10-11.

The competent evidence in this case showed that the 18 calls in this case were all made in a two-week period and made between 9:30 AM and 7:00 PM; of the 18 calls, 17 were unanswered; the debt collector never called more than three times in one day; there was at least three hours between each call; and the plaintiff was not called each day.  Moreover, the one call that was answered was a 40 second call in which “defendant’s representative conducted himself politely” and the plaintiff hung up.  In concluding that the calls did not rise to a level which violated the FDCPA, the court pointed out that the “FDCPA was not intended to prevent debt collectors from contacting debtors at all, or to ‘impose unnecessary restrictions’ on ethical collectors.”  Chisholm at *14.  In this case, the court concluded that, as a matter of law, there was no violation of the FDCPA.