Florida District Court Holds Calling System Sufficiently Configured to Avoid TCPA Liability
As lawsuits asserting claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”), continue to rise in the wake of the consumer-friendly Declaratory Ruling and Order issued by the Federal Communications Commission (“FCC”) last July, see In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7978 (2015), the systems and procedures utilized by businesses reliant on automatic dialing have become increasingly important. Indeed, as the United States District Court for the Southern District of Florida ruled last week in Strauss v. The CBE Group, Inc. and Verizon New England, Inc., when businesses implement calling procedures with the TCPA in mind, they can all but ensure their compliance with the statute's many unforgiving requirements. The dispute in Strauss arose out of a series of “wrong number” calls that The CBE Group, Inc. (“CBE”) made to the plaintiff's cell phone number, which, based on information that CBE had received from Verizon New England, Inc. (“Verizon”) when Verizon referred an account to CBE for collection, it believed was a landline belonging to a third-party debtor. See Order on Motions for Summary Judgment (hereinafter the “Strauss Order”) at 1, No. 0:15-cv-62026 (S.D. Fla., Mar. 28, 2016), ECF No. 113. Of the twenty-six total calls made between April and September 2014, CBE made the first two calls using a “Noble Systems Predictive Dialer,” but, after determining that the number at issue was a cell phone number, made the remaining calls via its “Manual Clicker Application” (“MCA”). Id. at 1-2. The plaintiff answered several of the calls but did not inform CBE that it had dialed the wrong number, or that he was not the third-party that CBE was attempting to reach. Id. at 2. Instead, he filed suit against CBE and Verizon, asserting claims under the TCPA, the Fair Debt Collection Practices Act, 15 U.S.C. § § 1692 to 1692p (the “FDCPA”), and the Florida Consumer Collection Practices Act, Fla. Stat. § § 559.55 to 559.785 (the “FCCPA”). Id. After discovery, the parties each moved for partial summary judgment. See Strauss Order at 2-3. Regarding the plaintiff's TCPA claims against CBE, except for the two calls that CBE made using the Noble Systems Predictive Dialer – which the district court held were “clearly” made using an automatic telephone dialing system and without plaintiff's prior express consent or for emergency purposes – the court granted summary judgment in favor of CBE. See id. at 6, 8-10. Specifically, the court found that even though the MCA that CBE used to make the calls in turn “utilized Noble connecting devices called Corphost1 and Corphost2” to connect the calls to a telephone carriers' network, the evidence demonstrated that these devices were “completely independent and separate from the Noble predictive dialer.” See id. at 2, 8-9 (citation omitted). Indeed, the court agreed that CBE had “configured” the MCA and the Noble devices used by it so as to require a CBE agent “to manually initiate the call by clicking a computer mouse or pressing a keyboard enter key.” Id. at 2, 9. Accordingly, the Court held that CBE had “presented substantial evidence that human intervention is essential at the point and time that the number is dialed using the MCA,” and for that reason concluded that CBE could not be held liable for the twenty-four calls made using the MCA system. Id. at 9-10. In addition, the district court also granted summary judgment in favor of Verizon on the plaintiff's TCPA claims, as well as in favor of both Verizon and CBE with respect to the plaintiff's FDCPA and FCCPA claims. In particular, the court held that the plaintiff had failed with respect to his TCPA claim against Verizon to show “that a ‘clear and unequivocal' agency relationship exists between CBE and Verizon,” and for his FDCPA and FCCPA claims, had neither “established that he has standing as a debtor or alleged debtor,” or that “the debt CBE was attempting to collect was a consumer debt.” See id. at 7-8, 11-15. Thus, in the end, the district court limited the damages awarded to the plaintiff to $1,000 in statutory damages, relief for a mere two phone calls that CBE made almost two years ago. Id. at 15.
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