A Minnesota District Court judge granted summary judgment on November 13 in favor of the defendant in Roark v. Credit One Bank, N.A., a Telephone Consumer Protection Act lawsuit regarding autodialers leaving pre-recorded messages on a consumer’s cell phone. From September through December 2015, Credit One’s vendors called plaintiff Stewart Roark’s cell phone 140 times and left four pre-recorded messages urging him to return the call. In December 2016, Roark called Credit One and stated that he was not a Credit One customer, resulting in Credit One placing him on its do-not-call list and ceasing calls to him. As it turns out, the actual Credit One customer’s phone number was reassigned to Roark’s cell phone number. Credit One stated it had no knowledge the number was reassigned because the actual Credit One customer never provided notice of the change in their number, and Credit One’s caller ID populated with the Credit One customer’s caller information when Roark called Credit One. Roark sued Credit One for violating the TCPA.
The TCPA prohibits use of an autodialer to call an individual’s cell phone without express consent. The TCPA defines an “autodialer” as “equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” In 2015, the FCC ruled that “capacity” includes the system’s current and potential capabilities.
In arriving at its holding, the Minnesota District Court relied on the D.C. Circuit Court decision in ACA International v. FCC. In ACA, the Court held that the Federal Communications Commission’s definition of “capacity” was overly broad; considering the potential capability of a phone would mean that nearly every phone could be considered an autodialer. Also, the Minnesota District Court followed the test set by the Second and Third Circuit Courts of Appeals in that the issue is not about the system’s potential capability; rather, the issue is whether a device has the present capacity to function as an autodialer.
Credit One’s vendors used predictive dialing systems to call Roark. According to the ACA ruling, predictive dialing systems are not always considered autodialers under the TCPA. The question is whether the device can generate numbers to dial either randomly or sequentially. According to Credit One, none of its vendors use systems that are capable of randomly or sequentially generating numbers to dial. In fact, they alleged, the vendors worked to ensure their systems did not have the capability to randomly or sequentially generate phone numbers.
The TCPA prohibits the use of artificial or pre-recorded messages to call a cell phone without express consent of the called party. The FCC defines “called party” as the current subscriber of the cell phone number and not the intended recipient of the call. However, the decision in ACA set aside the FCC’s treatment of reassigned numbers. The issue is the reasonableness of the caller’s reliance on the prior holder’s express consent.
Credit One had express consent from the actual Credit One customer to call and leave pre-recorded messages on the customer’s phone. The Minnesota Court held that Credit One had no reason to know that the phone number had been reassigned because Credit One received no notice from the customer, and Credit One’s caller ID still displayed the actual customer’s information when used. Hence, it was reasonable for Credit One to rely on the customer’s prior express consent to call his number.
The Minnesota Court held that Credit One’s predictive dialing systems did not violate the TCPA and that it was reasonable for Credit One to rely on the prior telephone number holder’s express consent to call and leave pre-recorded messages on the cell phone. The court granted summary judgment in favor of Credit One.