FDCPA Case — Dead Air Voicemail Is Not A “Communication”

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A federal judge in Texas ruled on August 15 in Garza v. MRS that a debt collector that leaves a single voicemail with just “dead air” and no words did not violate the Fair Debt Collection Practices Act (FDCPA).

Here is what the court wrote:

Assuming that a “communication” is not required for liability under section 1692d(6), the court must address whether MRS should have provided “meaningful disclosure” of its identity on a blank voicemail to comply with section 1692d(6). Neither party has supplied, and this court’s research has not revealed, a case explicitly discussing liability for a debt collector who left a blank voicemail on a debtor’s answering machine. Although plaintiff claims that a misleading voicemail can incur liability under the FDCPA, her cited authorities address only substantive voicemails. Hosseinzadeh v. M.R.S. Assocs., Inc., 387 F. Supp. 2d 1104, 1107 (C.D. Cal. 2005) (discussing oral, automated messages left on the debtor’s answering machine); Costa v. Nat’l Action Fin. Servs., 634 F. Supp. 2d 1069, 1075 (E.D. Cal. 2005). The voicemail in this case, by contrast, contained only dead air and no substance. The court views it as more akin to a missed call than a substantive voicemail and agrees with courts that have held that liability under section 1692d(6) cannot be imposed for hanging up in lieu of leaving a message. Hicks v. Am.’s Recovery Solutions, LLC, 816 F. Supp. 2d 509, 516 (N.D. Ohio 2011); Udell v. Kan. Counselors, Inc., 313 F. Supp. 2d 1135, 1143 (D. Kan. 2004).

Statutory interpretation of section 1692d(6) also precludes its application in the instant case. Plaintiff reads section 1692d(6) in isolation, but “a statute is to be considered in all its parts when construing any one of them.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 36, 118 S. Ct. 956 (1998) (referring to this principle as the “central tenet of interpretation”). Section 1692d prohibits debt collectors from engaging “in any conduct, the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” § 1692d. Further, the overarching purpose of the FDCPA is “to eliminate abusive debt collection practices by debt collectors.” § 1692(e). To hold that defendant is liable for violating the FDCPA without identifying any harassment, oppression, or abuse would be to implement the act in a scenario that would not further its statutory purpose.

Thus, after considering the statutory language and purpose of section 1692d(6), the court holds that defendant’s leaving of a single blank voicemail does not require “meaningful disclosure” of the caller’s identity. Accordingly, plaintiff’s claim under section 1692d(6) of the FDCPA fails.

I think the court got this right — we don’t know what the collector was trying to communicate and unless the plaintiff alleged in the complaint that the purpose of leaving the dead air voicemail was to harass, then suing over one single dead air voicemail seems a bit shaky to me.

Certainly collectors can harass by leaving messages with nothing on them just like collectors can harass by calling and not leaving a voicemail at all.

But based upon what the court said in this opinion (and sometimes important facts are left out or not argued, etc) it doesn’t seem like this is the situation in this case.

If you are dealing with debt collectors and you live in Alabama, feel free to visit our “Abusive Debt Collector” portion of our website Alabama Consumer to find out more about your rights. Or you can call us at 205-879-2447 for a free consultation by phone or in person.

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