Advertising Law Blog

In Ybarra v. Dish Network, LLC (decided on October 20, 2015), the Fifth Circuit Court of Appeals drew a distinction between autodialed calls and prerecorded voice message calls. Both potentially violate the Telephone Consumer Protection Act (TCPA) if there is no prior express written consent from the called party. However, an autodialed call violates the TCPA as soon as it is placed, while, according to the Fifth Circuit, a prerecorded message call does not violate the TCPA unless the recording is actually played.

Dish Network called the plaintiff to collect an unpaid bill. It employed a “Cisco Dialer,” a device that played a prerecorded message only when the call was met by a “positive voice,”  either an actual human voice or a recorded voicemail greeting. The district court in the Northern District of Texas granted summary judgment for the plaintiff because the calls involved prerecorded messages and there was no consent. The district court did not decide whether an autodialer was used, which is a more complicated question that requires careful and detailed consideration of the technology at issue.

Dish Network appealed, arguing that for four of the eight calls at issue, a prerecorded message was cued up but never actually played because its outgoing call was not met with a positive voice.

The Fifth Circuit agreed, holding, “To be liable under the ‘artificial or prerecorded voice’ section of the TCPA, we conclude that a defendant must make a call and an artificial or prerecorded voice must actually play… the TCPA makes it unlawful to make any call using an ‘automatic telephone dialing system.’ In contrast, it is not unlawful under the TCPA to make a call using an artificial or prerecorded voice system. Rather, what is precluded by the TCPA is making a call using ‘an artificial or prerecorded voice.’ The omission of the word ‘system’ must be given effect.”

The ruling continued, “We hold that making a call in which a prerecorded voice might, but does not, play is not a violation of the TCPA. Instead, the prerecorded voice must ‘speak’ during the call. 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. With a prerecorded voice, though, unless the recipient answers, an artificial or prerecorded voice is never used.”

Takeaway: Callers should adopt precautions similar to those used by Dish Network in which the recording does not automatically play.  Although this case was not a class action, the ruling could make it difficult for future TCPA class certification motions.  Whether or not a prerecorded message was actually played would seem to be an individual issue not suitable for determination on a class-wide basis.