UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Eugenia Doucette and John Doucette

v. Civil No. 14-cv-012-LM Opinion No.

GE Capital Retail Bank; and NCO Financial Systems, Inc.

O R D E R

This case arises out of a series of attempts to collect a

credit-card debt. Eugenia and John Doucette (“the Doucettes”)

have sued GE Capital Retail Bank (“GE”) and NCO Financial

Systems, Inc. (“NCO”). Against NCO, the Doucettes assert claims

under: (1) New Hampshire’s Unfair, Deceptive, or Unreasonable

Collection Practices Act (“UDUCPA”), N.H. Rev. Stat. Ann. ch.

358-C (Count I); (2) the federal Fair Debt Collection Practices

Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p (Count III); and (3) the

federal Telephone Consumer Protection Act (“TCPA”),

(Count V).1 Before the court is NCO’s motion for judgment on

the pleadings as to Count V. The Doucettes object. For the

reasons that follow, NCO’s motion for partial judgment on the

pleadings is granted.

The Legal Standard

Motions for judgment on the pleadings, under Rule 12(c) of

the Federal Rules of Civil Procedure, are evaluated under the

1 The case also includes a claim against GE under New Hampshire’s UDUCPA. same standard as motions to dismiss under Rule 12(b)(6). See

Frappier v. Countrywide Home Loans, Inc.,

(1st

Cir. 2014)) (quoting Marrero-Gutierrez v. Molina,

(1st Cir. 2007)).

Ruling on a motion to dismiss for “failure to state a claim

upon which relief can be granted,” Fed. R. Civ. P. 12(b)(6),

requires the court to conduct a limited inquiry, focusing not on

“whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claims.”

Scheuer v. Rhodes,

(1974). The heart of that

limited inquiry concerns “whether the complaint contains

sufficient factual matter to state a claim to relief that is

plausible on its face.” Carrero-Ojeda v. Autoridad de Energia

Electrica,

(1st Cir. 2014) (quoting Rodríguez-

Reyes v. Molina-Rodríguez,

(1st Cir. 2013))

(internal quotation marks and brackets omitted). To conduct its

limited inquiry, a court must: (1) “isolate and ignore

statements in the complaint that simply offer legal labels an

conclusions or merely rehash cause-of-action elements,”

(quoting Schatz v. Republican State Leadership Comm.,

(1st Cir. 2012)); and (2) “take the facts of the

complaint as true, ‘drawing all reasonable inferences in

[plaintiff’s] favor, and see if they plausibly narrate a claim

for relief,’”

(quoting Schatz,

).

2 Background

The following facts are drawn from the Doucettes’

complaint. See Carrero-Ojeda,

.

GE issued Mrs. Doucette a credit card. She accumulated

debt on the card, and then fell behind on her payments. In June

of 2013, she “began to receive collection calls” that “were made

by NCO in an attempt to collect payment on the [d]ebt” she owed

GE. Am. Compl. (doc. no. 13) ¶¶ 18, 20. “In its debt

collection efforts, NCO was either acting on behalf of or as an

agent [of] or [in the] employ of GE.” Id. ¶ 23. NCO “placed

[some of its] Collection Calls using an artificial or

prerecorded voice to [the Doucettes’] residential telephone

line.” Id. ¶ 104. In Count V of their amended complaint, the

Doucettes claim that by placing automated collection calls to

their residential phone line, without having gotten their

consent to receive such calls, NCO violated

(b)(1)(B).

Discussion

NCO argues that it is entitled to judgment on the pleadings

on Count V because the collection calls at issue here lie beyond

the scope of the TCPA. The court agrees.

Among other things, the TCPA makes it unlawful for any

person within the United States

to initiate any telephone call to any residential telephone line using an artificial or prerecorded

3 voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission under paragraph (2)(B).

(b)(1)(B). Under § 227(b)(2)(B)(ii), Congress

gave the Federal Communications Commission (“FCC”) the authority

to exempt calls made for commercial purposes that: (1) “will not

adversely affect the privacy rights that this section is

intended to protect”; and (2) “do not include the transmission

of any unsolicited advertisement.”

The FCC, in turn, has adopted a rule that bars any person

or entity from

[i]nitiat[ing] any telephone call to any residential line using an artificial or prerecorded voice to deliver a message without the prior express written consent of the called party, unless the call:

. . . .

(iii) Is made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing.

(a)(3).

In an order issued during the course of adopting rules

related to the TCPA, including the rule quoted above, the FCC

responded to commentators seeking an express exemption for

collection calls in the following way:

[W]e conclude that an express exemption from the TCPA’s prohibitions for debt collection calls is unnecessary because such calls are adequately covered by exemptions we are adopting here for commercial

4 calls which do not transmit an unsolicited advertisement and for established business relationships. . . . [T]hese exemptions would also apply where a third party places a debt collection call on behalf of the company holding the debt. Whether the call is placed by or on behalf of the creditor, prerecorded debt collection calls would be exempt from the prohibitions on such calls to residences as: (1) calls from a party with whom the consumer has an established business relationship, and (2) commercial calls which do not adversely affect privacy rights and which do not transmit an unsolicited advertisement. . . . Accordingly, we reject as unnecessary proposals that we provide specific language for use in prerecorded debt collection messages.

In re Rules & Regs. Implementing the TCPA of 1991, 7 FCC Rcd.

8752, 8773 ¶ 39 (Oct. 16, 1992); see also In re Rules & Regs.

Implementing the TCPA of 1991, 10 FCC Rcd. 12391, 12400 ¶ 17

(Aug. 7, 1995) (“prerecorded debt collection calls are

adequately covered by exemptions adopted in our rules [which]

explicitly exempt calls made either by a party with whom the

subscriber has an established business relationship or calls

that do not transmit an unsolicited advertisement and are made

for a commercial purpose”); In re Rules & Regs. Implementing the

TCPA of 1991, 23 FCC Rcd. 559, 561 ¶ 5 (Jan. 4, 2008)

(“prerecorded debt collections calls are exempted from Section

227(b)(1)(B) of the TCPA”); see also

¶ 14 n.49 (“Debt

collectors may use autodialing technology to call wireline

numbers. Debt collection calls fall within the exemption for

prerecorded calls that are commercial, but do not include an

unsolicited advertisement.”) (citation omitted).

5 Based upon the foregoing, it is clear that the FCC, acting

pursuant to its authority under

(b)(2)(B), has

enacted a rule, and has issued several orders, exempting debt-

collection calls from the prohibition stated in § 227(b)(1)(B).

Because the Doucettes’ TCPA claim is based upon the debt-

collection calls they received from NCO, they have failed to

state a claim for relief that is plausible on its face. See

Meadows v. Franklin Collection Serv., Inc.,

(11th Cir. 2011) (granting debt collector’s motion for

summary judgment and holding that “prerecorded debt-collection

calls are exempt from the TCPA’s prohibitions on [prerecorded]

calls to residences”); Zehala v. Am. Express, No. 2:10-cv-848,

, at *5 (Sept. 26, 2011) (granting motion to

dismiss TCPA claim and explaining that “[p]rerecorded telephone

calls made for the purpose of debt collection have consistently

been found to fit both exemptions for calls not containing

‘unsolicited advertisement or constitute telephone solicitation’

and calls made to a recipient ‘with whom the caller has an

established business relationship’”) (citation omitted).

The Doucettes attempt to evade the reach of

(b)(1)(B) & (b)(2)(B)(ii) and

(a)(3)(iii)

by arguing that because discovery is not yet complete, “there is

no evidence that the [automated] calls [they received] did not

also include an unsolicited advertisement or a telephone

6 solicitation.” Pl.’s Obj. (doc. no. 24) 3. That argument is

unavailing. When ruling on a motion for judgment on the

pleadings, as when ruling on a motion to dismiss under Rule

12(b)(6), the court bases its analysis on the well-pleaded facts

in the complaint. See Carrero-Ojeda,

. Here,

virtually every reference to NCO in the amended complaint

describes NCO as making collection calls. More specifically, in

its TCPA claim against NCO, the Doucettes allege that “NCO

willfully and/or knowingly placed Collection Calls using an

artificial or prerecorded voice to Plaintiffs’ residential

telephone line.” Am. Compl. (doc. no. 13) ¶ 104. In each of

the next four paragraphs, the amended complaint refers to NCO’s

“Collection Calls.” See id. ¶¶ 105-08. Nowhere in Count V, or

in the rest of the complaint, do the Doucettes ever allege that

they received any other kind of call from NCO, much less a call

transmitting an unsolicited advertisement. Accordingly, the

Doucettes’ amended complaint does not state a plausible claim

for relief under the TCPA. See Plumbers’ Union Local No. 12

Pension Fund v. Nomura Asset Acceptance Corp.,

(1st Cir. 2011) (citing Maldonado v. Fontanes,

(1st Cir. 2009)); González-Maldonado v. MMM Healthcare, Inc.,

(1st Cir. 2012) (citing Ashcroft v. Iqbal,

(2009); Bell Atl. Corp. v. Twombly,

(2007)).

7 Conclusion

For the reasons described above, the Doucettes’ claim that

NCO violated

(b)(1)(B) by subjecting them to

automated debt-collection calls is not a plausible claim for

relief. Accordingly, NCO’s motion for partial judgment on the

pleadings, document no. 22, is granted.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

October 2, 2014

cc: R. Matthew Cairns, Esq. Aaron R. Easley, Esq. Jonathan Eck, Esq. Michael T. Racine, Esq.

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