In Roark v. Credit One Bank, N.A., 2018 U.S. Dist. LEXIS 193252 (D. Minn. Nov. 13, 2018), the District of Minnesota added to the changing landscape for claims under the TCPA since the D.C. Circuit's decision in ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018). In addition to adding its voice to the debate over what type of equipment qualifies as an automatic telephone dialing system ("ATDS") under the statute, the Court granted summary judgment to the defendant based on consent to receive calls given by one of its customers – the customer to whom the telephone number at issue had belonged before it was reassigned to the plaintiff.
The case arose when Credit One attempted to contact one of its customers at a telephone number he provided. But unbeknownst to the bank, the number had been reassigned and the calls were being made to Stewart Roark's cell phone. Roark brought a claim alleging that the calls were made without his prior express consent and thus violated the TCPA.
The Court first considered whether the calls were made using an ATDS. The parties agreed that the system used was a "predictive dialer" that could dial automatically from a given list of telephone numbers. However, the Court rejected Roark's reliance on a recent Ninth Circuit decision holding that any system that has the capacity to store numbers qualifies as an ATDS.1 Rather, in granting summary judgement in favor of Credit One, it followed rulings from the Second and Third circuits in determining that a telephone system only qualifies as an ATDS if it has the present capacity to generate random or sequential numbers to call.2
Moreover, in addition to finding that there was no evidence that Credit One used an ATDS, the Court determined that calls in which prerecorded voice messages were left on Roark's phone did not violate the TCPA because the previous subscriber to his telephone number had consented to receiving such calls. Before the rule was vacated by the D.C. Circuit in ACA Int'l, the FCC had only allowed for a one-call "safe harbor" in TCPA claims involving wrong numbers. A caller would face liability after the first call, even if it did not know that the number it was dialing had been reassigned. Here, in the first such case since ACA Int'l, the Court applied the new standard and considered the reasonableness of the caller's reliance on the consent provided by the previous holder of a telephone number. Because the evidence showed that Credit One had no reason to know that the number had been reassigned, the Court determined that it was reasonable for the bank to rely on the consent given by its customer and granted summary judgment in its favor.
Although it is a positive development, the District Court's ruling is unlikely to be the final word in TCPA wrong number cases. We will continue to monitor this evolving area of the law and report on new developments as they emerge.
1 Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052 (9th Cir. 2018).
2 King v. Time Warner Cable Inc., 894 F.3d 473, 481 (2nd Cir. 2018); Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3rd Cir. 2018).
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