Bloomberg Law: Privacy & Data Security brings you single-source access to the expertise of Bloomberg Law’s privacy and data security editorial team, contributing practitioners,...
By Jimmy H. Koo
Oct. 21 — Making a call in which a prerecorded voice might, but doesn't, play isn't a violation of the Telephone Consumer Protection Act, the U.S. Court of Appeals for the Fifth Circuit held Oct. 20.
Instead, Judge Leslie H. Southwick said, the prerecorded or artificial voice must actually “speak” during the call.
In June 2012, the appeals court recounted, a person not involved in the lawsuit entered into an agreement with DISH Network LLC to receive television services. The customer authorized Dish to contact him at a specific phone number and in May 2013, plaintiff Armando Ybarra acquired the number, presumably after the Dish customer had relinquished it.
At some point, the appeals court said, the Dish customer stopped paying for the television services and Dish began calling his number, which now belonged to Ybarra. Between May 3, 2013 and Oct. 29, 2013, Dish called Ybarra 15 times.
On Nov. 14, 2014, the lower court granted Ybarra's bid for summary judgment on seven of the 15 calls. Soon thereafter, the parties agreed to dismiss claims related to the remaining eight calls. This appeal involves only the seven calls involved in the summary judgment, which were made using a “Cisco Dialer”—a device that plays prerecorded messages if calls are met by a “positive voice,” consisting of an actual human voice or a recorded voicemail greeting.
On appeal, Dish conceded that it violated the TCPA, 47 U.S.C. § 227, in making three of the calls using a prerecorded voice. However, it argued that none of the remaining four calls resulted in a prerecorded voice being played because the calls weren't met by a positive voice.
The appeals court agreed, reversing the grant of Ybarra's motion for partial summary judgment and remanding to the district court.
To be liable under the artificial or prerecorded voice section of the TCPA, the appeals court said, a defendant must make a call, and a prerecorded or artificial voice “must actually play.” The appeals court added that “a party who makes a call using an automatic telephone dialing system uses the system to make the call, regardless of whether the recipient answers, and thereby triggers TCPA liability.” However, with a prerecorded voice, unless the recipient answers the phone call, an artificial or prerecorded voice is never used, the appeals court distinguished.
Lemberg Law LLC represented Ybarra. Coplan & Aronoff LLP represented Dish.
To contact the reporter on this story: Jimmy H. Koo in Washington at email@example.com
To contact the editor responsible for this story: Donald G. Aplin at firstname.lastname@example.org
Full text of the court's opinion is available at http://www.bloomberglaw.com/public/document/Ybarra_v_Dish_Network_No_1411316_2015_BL_345030_5th_Cir_Oct_20_20.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)