Antitrust Law Daily Wrap Up, PRIVACY—M.D. Fla.: TCPA claim against Amazon fails, (Jun 25, 2015)

By Edward L. Puzzo, J.D.

An individual who received telephone calls on her cell phone from Amazon was unable to establish that the calls violated the Telephone Consumer Protection Act, the federal district court in Tampa has ruled (Tamburello v. Amazon Processing, LLC, June 23, 2015, Merryday, S.).

Josephine Tamburello alleged that Amazon Processing had violated Section 227(b)(1)(A)(iii) of the Telephone Consumer Protection Act (TCPA) by using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice to call her cell phone without her consent.

The court stated that the plaintiff in such cases has the burden of proving her case by the preponderance of the evidence. Finding that Tamburello failed to establish either the ATDS element or the pre-recorded message element of the alleged TCPA violation, the court entered a judgment in favor of Amazon.

Automatic telephone dialing system. Plaintiff alleged that Amazon used an ATDS to call her multiple times over a three-month period. However, the court found that the 15 calls in dispute came from three different numbers according to Caller ID: two identified and one from an “unavailable” number.

Amazon admitted that it sometimes uses an ATDS, and admitted calling plaintiff from one of the identified numbers, but further testified that the only method of dialing out using that number was through an operator dialing the number by hand, not by an ATDS. Amazon also denied that any of the numbers it uses present a Caller ID of “unavailable” or “unlisted,” and denied calling from the other identified number. The court found Amazon’s testimony credible. Thus plaintiff failed to establish Amazon’s use of an ATDS to call her cell phone.

Artificial or prerecorded voice. Plaintiff claimed that the calls in question contained the same pre-recorded message, but was unable to describe in detail the duration and content of the message. Amazon testified that it never used pre-recorded messages in any of its calls. The court also found this testimony credible. Thus plaintiff also failed to establish Amazon’s use of an artificial or prerecorded voice on their calls to her.

The case is Civil Action No. 8:14-cv-1362-T-23EAJ.

Attorneys: Lisa R. Wilcox (Wilcox Law, PA) for Josephine Tamburello. Brian C. Chase (Meridian Partners) for Amazon Processing, LLC.

Companies: Amazon Processing, LLC

Cases: Privacy ConsumerProtection FloridaNews