Antitrust Law Daily Wrap Up, PRIVACY—5th Cir.: Dish Network’s unplayed voice system calls did not violate TCPA, (Oct 21, 2015)

By Michael Menzhuber, J.D., LL.M.

An order granting summary judgment on a claim that Dish Network L.L.C. violated the Telephone Consumer Protection Act (TCPA) when it called an individual’s phone number seven times using a prerecorded voice system was reversed and remanded by the U.S. Court of Appeals in New Orleans. The appellate court determined that four of the calls, which were not answered by a human voice, did not violate the TCPA because the prerecorded voice did not play on these calls (Ybarra v. Dish Network, L.L.C., October 20, 2015, Southwick, L.).

Background. A consumer contracted with Dish to receive satellite-television service. As part of that contract, Dish was authorized to contact him at a specific phone number. In May 2013, Armando Ybarra acquired that number. When the consumer stopped paying for his Dish service, Dish began placing collection calls to the number that now belonged to Ybarra. Eight of these calls came from Dish’s 3474 number. Seven of these calls came from Dish’s 8047 number.

Ybarra filed an action that alleged that Dish violated the TCPA by calling his phone without his express consent, using an automatic telephone dialing system (ATDS) and/or an artificial or prerecorded voice. The district court granted partial summary judgment for Ybarra on the seven calls from Dish’s 8047 number but denied summary judgment on the eight calls from Dish’s 3474 number.

After the ruling, the parties reached a settlement agreement with respect to the eight calls from Dish’s 3474 number and stipulated to a dismissal of the Ybarra’s claims involving these calls. The district court entered a final judgment in the case and Dish timely appealed.

Jurisdiction. Ybarra argued that the court lacked jurisdiction because Dish’s right to appeal was not expressly reserved in either the parties’ proposed judgment or the district court’s final judgment. Ybarra further argued that Dish waived its right to appeal by consenting to the final judgment.

The court, however, disagreed. It noted that there were two separate groups of phone calls, distinguished by the equipment and the phone number used to place the calls, and there were distinctions among the claims for each group of calls that required different analysis. The court determined that, because settlement of one set of claims did not affect the analysis applicable to the other set of claims, the claims involving calls from Dish’s 8047 number were independent of the settled claims involving calls from Dish’s 3474 number. Consequently, the reservation of a right to appeal was effective.

Partial summary judgment. The district court granted partial summary judgment, with respect to the seven calls placed from Dish’s 8047 number, because Dish admitted to making them using a prerecorded voice system. Dish conceded that it violated the TCPA with respect to three of these calls. However, it argued that the other four other calls did not violate the TCPA because: (1) these calls were met by an answering machine and not a human voice; and (2) the prerecorded voice only played when the call was met by a human voice.

The court concluded that to be liable under the “artificial or prerecorded voice” section of the TCPA, a defendant must call and an artificial or prerecorded voice must actually play. Consequently, the court determined that while the TCPA prohibits calls using an “automated telephone dialing system”, it is not a violation of the TCPA to make a call using an artificial or prerecorded voice system where the prerecorded voice might, but does not, play.

The court, therefore, reversed the grant of partial summary judgment and remanded the case for the entry of judgment for Dish with respect to the four calls that were met by an answering machine.

The case is No. 14-11316.

Attorneys: Jenny Diane DeFrancisco (Lemberg Law, LLC) for Armando Ybarra. Eric Larson Zalud (Benesch, Friedlander, Coplan & Aronoff, LLP) and Vic Houston Henry (Henry, Oddo, Austin & Fletcher) for Dish Network, LLC.

Companies: Dish Network, LLC

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