A TCPA call is “made”: Successful Attempt Or Actual Receipt?

This was the central question addressed by the Eastern District of New York earlier this week in M.A. v. Nra Group, 2019 U.S. Dist. LEXIS 93444, 17–cv-7483 (NG) (RLM) (filed June 4, 2019).

The plaintiff, an 11-year old, received a cell phone from his grandmother for his birthday. Over a succeeding 9-month period, the defendant attempted to reach a debtor fifty-five times at the plaintiff’s phone number. Of course, neither the youngster nor his mother who was the named representative on the account had consented to receive such calls. The plaintiff sued under the TCPA and moved for summary judgment.

The defendant conceded that on each of the fifty-five calls, its “automatic dialing system detected a specific electronic tone from Verizon’s answering service, plaintiff’s phone service provider.” After hearing that tone, the defendant’s “telephony system confirmed that a connection had been established with Verizon and left or attempted to leave fifty-five prerecorded messages on the plaintiff’s phone.” Nra did not dispute that eight of the calls resulted in actual prerecorded voicemail messages; nor did it contest that it attempted to leave such messages on all of the calls. Instead, Nra argued it should be let off the TCPA hook for forty-seven of the calls because the plaintiff had not “demonstrated that [those]… call attempts actually reached plaintiff’s phone.”

The Court would have none of this attempt at statutory sleight of hand, noting that “[i]n effect, the plaintiff seeks to change the focus of the statute from the making of a call to the receipt of a call.”(emphasis in original). Judge Gershon rejected as inapposite precedent (Mais v. Gulf Coast Collection Bureau, Inc.) where the “calls never left the [defendant’s] system.” Here, the defendant had hoisted itself on its own proverbial TCPA petard by conceding that its “dialed calls ‘successfully went through’ because defendant does not dispute that its dialer actually dialed the plaintiff’s phone number on fifty-five occasions and …a tone was heard from the plaintiff’s side indicating the telephony system had answered the phone.” (emphasis in original).

The defendant’s argument might have fared better had it offered up the Fifth Circuit’s decision in Ybarra v. DISH Network, L.L.C. There the Court held that “[t]o 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.”

But in this case, no escape from summary judgment for the plaintiff on all fifty-five calls.

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