After two and a half years of litigation in the Southern District of New York, the Court entered judgment against Credit One Bank, N.A. on November 22 for violations of the Telephone Consumer Protection Act.

The case presented a variety of contentious TCPA issues, including: (1) whether calling a phone number previously belonging to a consenting consumer negates or mitigates liability; (2) what qualifies as an Automatic Telephone Dialing System, or “ATDS,” under the statute; and (3) whether calls placed to a potentially non-working number are still considered violations of the TCPA.

According to the Court’s order, Credit One placed 380 calls to plaintiff Alejandro Jiminez’s phone number between January and March of 2017. Even though some evidence suggested that 43 of the attempted calls were made while the phone number was not in service, the Court held Credit One liable for the statutorily-fixed amount of $500 per call, resulting in a $190,000 judgment. Although Jiminez was not a customer of Credit One, Credit One did have consent from the consumer who previously owned the number to call. Ultimately, in its March 28, 2019 opinion and order granting Jiminez’s motion for summary judgment, the Court found such prior consent immaterial.

In its order, the Court also deferred to the Federal Communications Commission’s 2003 Order, 2008 Ruling, and 2012 Order – all providing a broad definition of predictive dialers and indicating that predictive dialers are ATDSs under the TCPA.

The Court disagreed with more recent decisions, such as Pinkus v. Sirius XM Radio, Inc., Thompson-Harbach v. USAA Fed. Sav. Bank, ACA International v. FCC, and others, which set aside the FCC’s general definition and, instead, analyzed whether the dialing telephone is capable of random or sequential number generation. Here, without analyzing the specific functions of the telephone system, the Court determined that the system used to call Jiminez was a predictive dialer under the general terms adopted by the FCC.

Regarding the 43 calls that arguably never reached a working phone number, Credit One argued that “[w]hen a call goes to a non-working number, no one suffers an invasion of a legally protected interest that is concrete and particularized.” Nonetheless, the Court opined, “it is the making of the call, not its receipt, that is the predicate for statutory damages liability under the TCPA.”

Credit One has not yet appealed the Court’s decision. Troutman Sanders will continue to monitor and report on the progress of this case.