Applying Facebook, Court Tosses Suit Over ATDS Allegations

TCPA Connect

Applying the Supreme Court’s recent decision in Facebook v. Duguid, a North Carolina federal court dismissed a Telephone Consumer Protection Act (TCPA) suit, finding that the plaintiff failed to sufficiently allege the defendant used an automatic telephone dialing system (ATDS).

On July 15, 2013, David Barnett applied for and received a Bank of America (BOA) credit card. He provided the bank with his cellphone number in the application and he later orally granted BOA permission to call his cellphone with autodialers and prerecorded messages during a Jan. 20, 2015 phone call with a bank representative.

Barnett fell behind on payments due on his account. As alleged by Barnett, when a BOA representative called him on May 8, 2019, and explained that the calls would continue because they hadn’t “come to a resolution” on payment, Barnett replied “Okay. That’s fine. All right. Thank you.”

In a later call, Barnett asked the BOA representative to send his bill and “put it in the mail” but did not explicitly discuss contact by phone.

According to Barnett, BOA called him over 300 times between April 2019 and September 2019. He filed suit under the TCPA.

Following discovery, BOA moved for summary judgment. Pointing to the Facebook decision, the bank argued its dialing technology did not qualify as an ATDS as defined by the statute.

U.S. District Judge Robert J. Conrad Jr. granted the motion.

The record evidence showed that the calls were placed with BOA’s Avaya Proactive Contact system. When an agent uses the system, Avaya delivers telephone numbers in a call list, and when the agent logs in, the Avaya system begins calling customers who have defaulted on their accounts.

No evidence was presented that the Avaya system generates random or sequential numbers, or that it is capable of doing so. The system selects accounts based on a number of factors, including balance, delinquency stage, recency of payment, recency of contacts and others.

Barnett objected to BOA’s description of the system but did not produce contrary evidence, Conrad said. Although Barnett cited deposition testimony from bank employees stating that the numbers selected for calls were based on several factors, “this very testimony undermines plaintiff’s argument, as the numbers chosen for the calls are selected from a pre-existing list created based on criteria from the dialer administrators, rather than by random or sequential number generators,” Conrad wrote.

The Supreme Court held in Facebook that, for equipment to qualify as an ATDS, the TCPA “requires that in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.”

BOA “is entitled to summary judgment based on the Supreme Court’s ruling in Facebook, along with the lack of plaintiff’s evidence that the Avaya system uses a random or sequential number generator, and defendant’s affirmative evidence that the system does not use such a number generator,” Conrad concluded.

Barnett’s assertions that he was missing critical information and needed more discovery were unavailing.

Even if BOA’s Avaya system were an ATDS for TCPA purposes, Barnett’s claim would fail because he legally consented to the calls, Conrad added. Barnett provided his cellphone number in his credit card application and expressly granted consent to be contacted during subsequent conversations.

Barnett argued that he later revoked his consent by stating that he wanted future communications by mail and would call BOA when he had the money to pay his bill, but the court said his communications “were too ambiguous to qualify as a revocation of consent.”

“[A] plaintiff’s words must clearly revoke consent,” Conrad wrote. “Here, plaintiff requested to be contacted by mail, and stated that he would contact defendant when he was able to pay, but at no point did he directly ask defendant to stop contacting him. In fact, when defendant informed plaintiff that the calls would continue, plaintiff did not argue and even said, ‘Okay.’ Any arguable implication is ambiguous and insufficient for revocation.”

The court granted BOA’s motion for summary judgment.

To read the order in Barnett v. Bank of America, click here.

Why it matters: The North Carolina decision is one of the first cases to rely on the Supreme Court’s Facebook ruling with regard to what constitutes an ATDS under the TCPA and is a clear victory for the defendant. The court also considered whether the plaintiff revoked his consent to receive the calls at issue and found that his requests to be contacted by mail or to call the bank himself were too ambiguous to constitute revocation.

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