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Fifth Circuit: TCPA Violation Requires Connection for Prerecorded Message, But Not for Dialer

posted on 2015-11-04 by Justin Brandt, Alan D. Wingfield and Chad Fuller

On October 20, the United States Court of Appeals for the Fifth Circuit delivered its opinion in Ybarra v. DISH Network, LLC (“DISH”), a case involving alleged violations of the Telephone Consumer Protection Act, which prohibits callers from using an automatic telephone dialer system (“ATDS”) and delivering messages with an “artificial or prerecorded voice” without prior express consent of the called party.

Ybarra focused on DISH’s attempts to collect an outstanding balance owed by one of its customers by calling a cell phone number believed to belong to that customer.  At some point, the customer relinquished that cell phone number, and Ybarra subsequently became the subscriber to that number.  When DISH’s customer failed to pay the account balance, DISH called the phone number now belonging to Ybarra fifteen times from two different DISH phone numbers.  (Under recent FCC guidance, the TCPA only allows a “one-call exception” for reassigned numbers; potential liability exists after the first call attempt to a number’s new subscriber, even if the caller has no actual knowledge that the original subscriber no longer utilizes the number.)

There has been confusion regarding whether TCPA liability exists for call attempts using ATDS or prerecorded messages that fail to reach their intended recipient, whether due to lack of answer or other transmission error.  In Ybarra, DISH contended that four of the calls did not violate the TCPA because “none of these calls resulted in a prerecorded voice being used because no prerecorded voice was played.”

Based on its strained reading of the TCPA, the Fifth Circuit determined that ATDS calls do not require actual connection to violate the statute because the system is still being “used.”  However, the Fifth Circuit came to the opposite conclusion as to prerecorded messages, finding that the prerecorded voice is not “used” if no connection is made.

Although this decision presents a sliver of good news for callers using prerecorded messages, the more onerous outcome is the expansive liability for usage of ATDS even in situations in which contact is not made with the called party.  DISH evaded liability for the four calls only because Ybarra failed to produce admissible evidence that those calls were also placed with an ATDS.  Plaintiff’s lawyers will likely argue that under the view espoused by the Fifth Circuit, the TCPA can be violated by attempted calls – not just calls that actually reach the intended called party or the called party’s voicemail.

Troutman Sanders LLP has unique industry-leading expertise with the TCPA, with experience gained trying TCPA cases to verdict and advising Fortune 50 companies regarding their compliance strategy.  We will continue to monitor regulatory any judicial interpretation of the TCPA following this ruling in order to identify and advise on potential risks.