Betz v. Glob. Telesourcing

• Decision Date: 10 December 2021
• Docket Number: Civil Action 21-cv-1320 (BAH)
• Parties: NA'EEM BETZ, Plaintiff, v. GLOBAL TELESOURCING, LLC, Defendant.
• Court: U.S. District Court — District of Columbia

NA'EEM BETZ, Plaintiff,
v.
GLOBAL TELESOURCING, LLC, Defendant.

Civil Action No. 21-cv-1320 (BAH)

United States District Court, District of Columbia

December 10, 2021

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge.

Plaintiff Na'eem Betz, proceeding pro se, brings the instant suit against defendant Global Telesourcing, LLC, alleging that defendant called his wireless telephone number that was registered on the national do-not-call list, in violation of the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227, and its implementing regulations. Am. Compl., ECF No. 12. In response, defendant filed a counterclaim for common law fraud, alleging that plaintiff made false allegations that defendant violated the TCPA. See generally Def.'s Answer & Countercl. Pl.'s Am. Compl. (“Def.'s Answer & Countercl.”), ECF No. 13. Pending before the Court are defendant's motion for sanctions under Federal Rule of Civil Procedure 11, see Def.'s Mot. Sanctions (“Def.'s Mot.”), ECF No. 15, and plaintiff's motion to dismiss defendant's counterclaim for lack of subject matter jurisdiction, see Pl.'s Mot. Dismiss Def.'s Countercl. (“Pl.'s Mot.”), ECF No. 16.

For the reasons set forth below, the defendant's motion for sanctions is denied with leave to renew, the Court dismisses defendant's counterclaim, sua sponte, pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim on which relief may be granted, and plaintiff's motion is denied as moot. Put another way, after resolution of this flurry of pretrial

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motions requiring judicial attention, this case remains pending for plaintiff to proceed on his original claim.

I. BACKGROUND

Following brief review of the statutory and regulatory background, the factual history underlying the claims and procedural history of this case are summarized below.

A. Statutory and Regulatory Background

Congress enacted the TCPA in 1991 to curb abusive telemarketing practices that threatened consumer privacy. TCPA, Pub. L. No. 102-243, § 2(6), 105 Stat. 2394, 2394 (finding that “[m]any consumers are outraged over the proliferation of intrusive, nuisance calls to their homes from telemarketers”). The TCPA bans invasive telemarketing practices and directs the Federal Communications Commission (“FCC”) to prescribe implementing regulations. See Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 373-74 (2012). To that end, Congress instructed the FCC consider whether to create “a single national database to compile a list of telephone numbers of residential subscribers who object to receiving telephone solicitations.” 47 U.S.C. § 227(c)(3). In 2003, the FCC issued a final rule establishing a national Do Not Call (“DNC”) registry with the Federal Trade Commission (“FTC”).^[1] See Rules and Regulations Implementing the Telephone Consumer Protection Act (TCPA) of 1991, 68 Fed.Reg. 44144-01 (July 25, 2003) (codified at 47 C.F.R. § 64.1200). Once an individual registers their residential or wireless telephone number on the DNC list, the TCPA regulations restrict the telephone solicitations that can be made to that number. Id. at 44146-47; see also 47 C.F.R. §§ 64.1200(c)-(e). If an

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individual does receive telephone solicitations in violation of the TCPA's regulations, the TCPA provides a private right of action for “[a] person who has received more than one telephone call within any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under [the TCPA].” 47 U.S.C. § 227(c)(5).

Limited exemptions to liability are provided under DNC regulations, including if the subscriber consented to the calls or if an “established business relationship” (“EBR”) existed between the caller and the subscriber. 47 C.F.R. § 64.1200(f)(15). The FCC defines an EBR as

a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber's purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber's inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party

Id. § 64.1200(f)(5). A subscriber may, however, terminate an EBR by specifically requesting “not to receive telemarketing calls made by or on behalf of that person or entity . . . even if the subscriber continues to do business with the seller.” Id. §§ 64.1200(d), (f)(5)(i). The FCC has “recognize[d] that companies often hire third party telemarketers to market their services and products. In general, those telemarketers may rely on the seller's EBR to call an individual consumer to market the seller's services and products.” In Re Rules & Reguls. Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14083 (2003). The seller or telemarketer has the burden of proving the existence of an EBR. See Rules and Regulations Implementing the TCPA, 68 Fed.Reg. at 44159 (“Any seller or telemarketer using the EBR as the basis for a telemarketing call must be able to demonstrate, with clear and convincing evidence, that they have an EBR with the called party.”).

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B. Factual Background

Plaintiff is a resident of Washington, D.C., and has registered his telephone number (ending in 8063) on the DNC list since 2012. Am. Compl. ¶¶ 7, 13. Defendant is a limited liability company located in Virginia that provides customer service functions and contact programs on behalf of its clients. Id. ¶¶ 8, 9. Between February 24, 2021, and March 18, 2021, defendant called plaintiff's registered telephone number ten times on behalf of Comcast, based on plaintiff's alleged status as a current Comcast customer. Id. ¶ 13; Def.'s Answer & Countercl. at 12. Plaintiff never answered any of these calls, Def.'s Answer & Countercl. at...