In Ramsey v. Receivables Performance Mgmt., LLC, Judge McFarland, of the United States District Court for the Southern District of Ohio, granted partial summary judgment for Phillip Ramsey, Plaintiff – holding that Receivables Performance Management, LLC and Howard George (Chief Executive Officer, RPM), Defendants, violated the Telephone Consumer Protection Act by calling Plaintiff two hundred and forty-five times with an automatic telephone dialing system after Plaintiff revoked consent. Judge McFarland denied summary judgment for defendants and awarded Plaintiff $122,500 in statutory damages.

At issue in the case was (1) whether RPM’s dialing system was an ATDS; (2) whether RPM had prior express consent to call Ramsey; and (3) what effect, if any, Ramsey’s revocation of consent letter sent to Windstream had on RPM.

Ramsey was a subscriber of Windstream Communications, LLC. After Ramsey’s father accessed Ramsey’s subscription to purchase a large quantity of on-demand movies, Windstream attempted to collect for charges on the account. In November 2014, Ramsey sent a letter requesting that Windstream and “any affiliated collection agencies” cease contacting him. The following year, without notifying RPM of Ramsey’s cease contact letter, Windstream forwarded Ramsey’s account to RPM for debt collection.

RPM, without knowledge of the cease contact letter, and assuming Ramsey had given prior express consent to Windstream, made two hundred and forty-five collection calls to Ramsey between February and July of 2015 using Noble Predictive Dialer. Ramsey subsequently filed suit and moved for summary judgment – alleging defendants violated the TCPA by contacting him on his cell phone with an ATDS without his prior express consent.

There is a circuit split regarding the appropriate interpretation of the statute defining an ATDS. In Allan v. Pennsylvania Higher Educ. Assistance Agency, the Sixth Circuit joined the Second and Ninth circuits in holding that the appropriate interpretation of the statute is that an ATDS is: “equipment which has the capacity [] to store [telephone number to be called]; or produce telephone numbers to be called using a random or sequential number generator; and 01 to dial such numbers.” In other words, the “using a random or sequential number generator” modifies “produce” but not “to store.”  The Court found that RPM’s Noble Predicative Dialer was an ATDS as interpreted through the lens of Allan.

Under the TCPA, it is “unlawful. . .  to make any call. . . using any automatic telephone dialing system or an artificial or prerecorded voice,” and plaintiffs may “recover for actual monetary loss from [a TCPA violation], or. . . receive $500 in damages for each [TCPA violation], whichever is greater.” However, there is an exception under the TCPA for calls made by an automatic telephone dialing system if the called party provided prior express consent.

The Court held that RPM could not invoke the prior express consent exception to the TCPA, as Ramsey had revoked his consent in writing in November 2014, and Windstream could only “convey the consent Ramsey had given it..” Therefore, unfortunately for RPM, it remained liable for TCPA violations resulting from the calls it made to Ramsey. The Court emphasized that “[a] third party debt collection agency is liable for autodialed calls under the TCPA when the consumer has revoked his prior express consent to be called, even when that revocation has not been communicated to the debt collector or the debt collector otherwise fails to confirm the consumer has consented to calls.”