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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.
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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.
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