TCPA defendants can add another weapon to their arsenal with Roark v. Credit One Bank, N.A., a decision out of the District of Minnesota (in the 8th Circuit). Roark provides the first rejection of the 9th Circuit’s ruling in Marks v. Crunch SanDiego, LLC (which we previously covered here) on the issue of what constitutes an “automatic telephone dialing system” (“ATDS” or “autodialer”). In addition to shunning Marks’s expansive ATDS ruling, the court in Roark also institutes a new standard for determining TCPA violations for calls to reassigned phone numbers to fill the void left after the FCC’s former ruling on the subject was invalidated.
The facts of the case are straightforward – Defendant Credit One Bank received consent from a customer to make calls to him using prerecorded messages. That customer then changed his phone number, and the old number was reassigned to the Plaintiff. The bank, attempting to contact the customer, then called Plaintiff more than 100 times over a three-month period using a predictive dialing system without the capacity to generate numbers to call. During this period, the bank received no indication that the number no longer belonged to its customer. Finally, Plaintiff called the bank and informed the agent that the he was not a customer of the bank, at which point the bank placed Plaintiff on its do-not-call list and never called him again.
Granting summary judgment in favor of the bank in a brief but poignant analysis, the court establishes answers to two topics left unsettled in the wake of ACA International’s invalidation of the FCC’s 2015 Declaratory Ruling and Order. First, the court adopts the “present capacity” standard for determining whether a device is an ATDS. It therefore more closely tracks the opinions from the Second and Third Circuits to determine whether a predictive dialer is considered an ATDS under the TCPA. Second, it rules that a reasonableness test must be used to interpret the term “called party” in TCPA cases dealing with reassigned numbers.
Although there was no question the bank used a predictive dialing system to make the calls to Plaintiff, the court found that the device was not an ATDS under the TCPA. The court rejected the Plaintiff’s assertion that under Marks, all predictive dialing systems are autodialers as a matter of law. Instead, the court found the Second and Third Circuit rulings in King and Dominguez more persuasive, specifically stating that to be considered an ATDS under the TCPA, a device must (1) have the present capacity to (2) generate numbers to dial either randomly or sequentially. Plaintiff provided no evidence that the device used by Defendant had this capability.
The court then broke new ground, establishing a reasonableness standard for calls to reassigned numbers. Finding that the ACA Int’l ruling had invalidated the FCC’s “safe harbor” rule, which permitted one call to a reassigned number, the Court instead dictated that the correct test is whether the caller reasonably relied on the express consent of the former holder of that number. Under this standard, the court determined that the Defendant had no reason to know of the reassignment of the number to Plaintiff until it had been informed of that fact by the Plaintiff, after which no calls were made to him.
The FCC has since created a reassigned number database and enacted a modified version of the safe harbor rule along with it that will apply for numbers that are confirmed to be on the database at the time of the call. We will cover more on the specifics of the database and the new safe harbor rule in a future post. However, the FCC has still provided no additional guidance on the ATDS issue in the wake of ACA Int’l. So for the time being, this ruling, paired with the subsequent decision out of the Northern District of Iowa in Thompson-Harbach v. USAA Fed. Sav. Bank (also in the 8th Circuit), which we covered here, establishes a useful counterpoint to the 9th Circuit’s plaintiff-friendly interpretations of what constitutes an ATDS.
By Greg Caffas
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