In Benedetti v. Charter Communications, Inc., 2018 WL 2970998, at *2 (S.D.Ind., 2018), Judge Miller denied summary judgment to a TCPA defendant who established that an ATDS was not used because the calls may have been pre-recorded calls.
Charter is correct that Ms. Benedetti doesn’t have evidence to show that any of the calls was made by using an automatic telephone dialing system. But the summary judgment evidence would allow a reasonable jury to find that Charter used a prerecorded voice on the calls. Ms. Benedetti’s opinion testimony on that point doesn’t rely on what was said by a prerecorded voice; it’s based on her familiarity with the calls.  Charter claims entitlement to summary judgment because Ms. Benedetti consented to the calls. A call that would otherwise violate the TCPA is lawful if the recipient provides express consent, but consent “is an affirmative defense on which the defendant bears the burden of proof.” Blow v. Bijora, Inc., 855 F.3d at 803. The calls in question must be “reasonably related to the purpose for which she provided her cell phone number.” Id. at 804. Charter argues that Ms. Benedetti consented to calls because she agreed to have her number on the account to address issues with the account. Ms. Benedetti argues that she only told Charter, via Mr. Craig, that she wanted to be permitted to speak to Charter regarding troubleshooting issues and didn’t authorize the release of her cell phone number, much less authorize Charter to call her regarding debt collection.  Ms. Benedetti testified as to what she asked Mr. Craig to do and what Mr. Craig told her he had done, but the summary judgment record contains nothing regarding what Mr. Craig actually said to Charter about the use to which Ms. Benedetti’s name and cell phone number might be put. This is an affirmative defense on which Charter bears the burden of proof at trial, so Charter must point to evidence that would allow the jury to find, by a preponderance of the evidence, that Ms. Benedetti authorized the use of her number for calls relating to late or missing payments, as well as for “troubleshooting,” which is the extent of Ms. Benedetti’s testimony. Charter isn’t entitled to judgment as a matter of law on its consent defense.  A jury that believes Ms. Benedetti’s testimony and draws all reasonable inferences in her favor could find for her on her TCPA claim. Charter is right that no jury could find that it used automatic dialing, but that it only one method of proving a TCPA claim, as opposed to a separate claim. That issue in better addressed through the pretrial order than through partial summary judgment.