Dukes v. DirecTV: Debt Collection Calls Are Not Telephone Solicitations Under Federal Rules or Texas Chapter 302

Background

Two plaintiffs alleged that DirecTV engaged in "reckless and aggressive debt collection practices." One received at least seventeen calls from a number associated with DirecTV, and the other received calls in nearly identical fashion. Each time, the caller asked for someone else about a debt owed to DirecTV. Both plaintiffs suspected an automatic telephone dialing system (ATDS) and both asked DirecTV to stop calling.

They sued under the Telephone Consumer Protection Act (TCPA) and its regulations. The Texas plaintiff added claims under Chapter 302 of the Texas Business and Commerce Code and the Texas Deceptive Trade Practices Act (DTPA). DirecTV moved to dismiss everything except the claim under 47 U.S.C. § 227(b)(1)(A), which it did not challenge.

The Federal Do Not Call Claims

The plaintiffs invoked 47 C.F.R. § 64.1200(d), which requires an internal do not call list before a person or entity initiates calls for telemarketing purposes. Their theory was that DirecTV's customary business is selling satellite subscriptions, so its calls should count as solicitations.

The court rejected that theory. The plaintiffs cited no authority for the idea that a company's customary business practice turns every call into a regulated solicitation. They did not dispute that § 227(c) and § 64.1200(d) reach only calls made for telemarketing purposes. Most importantly, their own complaint alleged that DirecTV called "with the sole intention of collecting a debt." The court therefore could not reasonably infer a telemarketing purpose.

The Chapter 302 Claim

Chapter 302 regulates telephone solicitations made within Texas or to Texas residents and bars soliciting without a registration certificate. The statute defines a telephone solicitation as "a telephone call a seller or salesperson initiates to induce a person to purchase, rent, claim, or receive an item."

The court found the pleading deficient in several respects. The plaintiff alleged that DirecTV violated "each and every one of the provisions of Chapter 302" without identifying any section. She never alleged that the calls were solicitations, and she never alleged that DirecTV lacked a registration certificate.

On the merits, the court observed that the Texas definition is nearly identical to the federal definition in § 64.1200(f)(14), so the federal reasoning applied with equal force. It quoted a Southern District of Texas decision stating that "[t]he Texas TCPA proscribes only that conduct which is also prohibited by the TCPA." Because the plaintiff admitted the calls were made solely to collect a debt, the Chapter 302 claim failed.

The DTPA Claim

The DTPA claim rested entirely on a viable Chapter 302 claim. With that claim dismissed, the DTPA claim fell too.

Takeaways

• Purpose controls. Under both § 64.1200(d) and Chapter 302, the question is why the call was made, not what the caller sells.
• Pleading collection calls defeats solicitation claims. Alleging that calls were solely for debt collection forecloses a telemarketing theory.
• Chapter 302 claims need specificity. Plaintiffs should identify the provision, allege solicitation, and plead the registration status.

Read the full Northern District of Texas opinion.