The district court also ruled that the caller had the right to call the number even though it had been reassigned.
A district court in Minnesota recently provided an industry-favorable decision on the issues of autodialers and prior express consent in the reassigned number context. In Roark v. Credit One Bank, N.A., 16-cv-173, 2018 WL 5921652 (D. Minn. Nov. 13, 2018), bank’s customer had provided consent to be called, and never informed the bank that his cell phone number ceased to be his. The bank continued to call the cell number until it was informed by the current subscriber (the plaintiff) that the number had been reassigned to him.
The two key issues in the case were (1) what constitutes an autodialed in the wake of ACA Int’l v. FCC and (2) what must take place before a creditor/agency can no longer rely prior express consent.
In Roark, the bank received express consent to contact the customer concerning all matters related to his account. Unbeknownst to the bank, the cell phone number it had been provided was later reassigned to a new subscriber (i.e., the plaintiff). The bank continued to call the reassigned number 140 times. Of these calls, only four resulted in a prerecorded message being left on the new subscriber’s voicemail. The new subscriber called the bank four times, but curiously hung up each time he was connected to a representative. The new subscriber (soon to be plaintiff) stated the reason that he hung up was that he did not want to talk to the bank’s representative.
During each call the bank’s caller ID continued to populate the previous subscriber’s name along with his phone number. Finally, after 140 call attempts, the new/reassigned subscriber called the bank and told it the number it was calling had been reassigned to him. The bank immediately put the subject phone number on its do not call list and never called him again. The new/reassigned subscriber responded by suing the bank under the Telephone Consumer Protection Act. The district court stayed the case, pending the outcome of ACA Int’l v. FCC.
Once the D.C. Circuit Court of Appeals issued its industry-favorable decision in ACA Int’t. v. FCC, the bank argued that the limited functionality of its phone system (i.e., a predictive dialer) and current case law warranted summary judgment in its favor. Plaintiff, on the other hand, argued that the FCC rulings from 2003 and 2008 still applied notwithstanding ACA Int’l, and notwithstanding the fact that the FCC’s 2015 ruling was invalidated in this respect.
The district concluded that the bank’s dialing system was not an auto dialer as defined by the TCPA. The district court reasoned that, “[the bank’s] predictive dialing systems [does] not violate the TCPA because there is no evidence … that they are presently used to generate and dial random or sequential numbers.” In its ruling, the district court sided with ACA Int’t. v. FCC , as well as the Second and Third Circuits which have ruled on this issue.
Next, the district court considered the reasonableness of the bank’s reliance on its customer’s express consent regarding continued calls to the subject cell number, which unbeknownst to the Bank had been reassigned. In doing so, the district court found that because the bank did have express consent to call the previous subscriber, coupled with the fact that it had no reason to know the subject phone number had been reassigned, it was reasonable for the bank to continue to rely on the prior express consent of its customer.
ACA International attorney member Patrick D. Newman of Bassford Remele PA, Minneapolis, MN offered the following analysis of the district court’s decision:
- “This is a tremendous decision for the industry which adds a much-needed arrow to the defense bar’s quiver in TCPA cases as to what constitutes an ATDS, as well as the issue of calls to reassigned numbers.”
- “Significantly, the district court ruled that, in light of the D.C. Circuit’s decision in ACA International v. FCC, predictive dialers are no longer an ATDS per se. Instead, the court looked to the statutory definition of “automatic telephone dialing system,” focusing on whether the challenged platform has the “present capability … to generate numbers to dial either randomly or sequentially.” This is a welcome shift to logical analysis in the world of TCPA claims thanks in large part to ACA International v. FCC.”
- “The Roark court’s analysis avoids the overbreadth issues the D.C. Circuit identified in ACA International. Simply put — if a platform can store numbers and dial them automatically, but is incapable of generating the numbers randomly or sequentially as is, then the platform does not constitute an ATDS. Notably, this reasoning is consistent with the Third Circuit’s holding in Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018).”
- “The Roark court’s analysis deviates starkly from the Ninth Circuit’s recent holding in Marks v. Crunch San Diego, LLC which concluded that “the statutory definition of ATDS is not limited to devises with the capacity to call numbers produced by a ‘random or sequential number generator,’ but also includes devices with the capacity to dial stored numbers automatically.” 904 F.3d 1041, 1052 (9th Cir. 2018) (emphasis added). Accordingly, industry members should take care regarding the jurisdictions they are calling into as the US is being divided up into jurisdictions where a predictive dialer is not an ATDS and others where a predictive dialer will be deemed to be an ATDS.”
- “And as to the second issue, the Roark court’s “reasonable reliance” test for determining whether calls made to reassigned numbers violate the TCPA, represents a welcome outcome for collectors. The court concluded that because the defendant had obtained prior express consent from the original number holder and had no reason to know the number had been reassigned to the plaintiff, there was no viable reassigned-number claim. In short, it was reasonable under these circumstances for the caller to have relied on the original number holder’s previously-provided consent to call the number.”
- “This analysis also appeals to logic—how can a caller reasonably be expected to know that the number has changed hands if nobody tells the caller? According to Roark, they can’t be. For now, that’s as logical a rule as can be found in the world of TCPA litigation.”
Patrick Newman may be reached at:
Fifth Street Towers
100 South 5th Street, Suite 1500
Minneapolis, MN 55402-1254
ACA International Members Attorney Program members interested in contributing their insights on a case for the Daily Decision Deep Dive may contact ACA International’s Communications Department at [email protected].