In Danehy v. Time Warner Cable Enterprise LLC, 2015 WL 5534285, at *2-3 (E.D.N.C.,2015), Judge Flanagan adopted a Magistrate’s ruling on summary judgment in favor of a TCPA defendant.
In his objections, plaintiff takes issue with the magistrate judge’s determination that SkyCreek did not utilize an ATDS when making calls to plaintiff’s telephone. The court does not reach the merits of plaintiff’s objection, however, because defendant’s motion for summary judgment properly may be granted on other grounds. Plaintiff fails to object to the remaining portions of the M & R upon which the magistrate judge otherwise relies in recommending dismissal of all plaintiff’s claims, and accordingly, the court reviews these dispositive determinations only for clear error. In the M & R, the magistrate judge determined that although plaintiff has standing to bring his ATDS claim, defendant in good faith relied on the consent of its customer, the former owner of plaintiff’s telephone, when making the calls to plaintiff. The M & R suggests that this good faith belief of consent is a complete defense to both plaintiff’s ATDS claims and his Do–Not–Call Registry claims. Further, the magistrate judge in the alternative recommends that plaintiff’s claims must be dismissed because the type of calls made by defendant fell outside the intended scope of the TCPA. Specifically, the magistrate judge determined that defendant’s good faith belief that it was attempting to respond to a service call by a customer precludes the ATDS claim, and that the nature of the call, a response to a call for service, does not constitute a telephone solicitation for the purposes of the Do–Not–Call Registry. Courts are divided on the proper resolution of these issues, and the Fourth Circuit has not determined yet whether a defendant may rely on a good faith defense under these circumstances. Upon a review of the case law available, however, the court finds no clear error in the magistrate judge’s determinations. See Chyba v. First Financial Asset Mgmt., 2014 WL 1744136 *12 (S.D.Ca. April 30, 2014) (“Even if Plaintiff is correct in stating that she never gave Defendant or Enterprise consent to call, and there was no actual prior consent from Plaintiff, Defendant is not liable for acting in good faith upon the information provided to it.”). But, cf., Breslow v. Wells Fargo, N.A., 755 F.3d 1265 (11th Cir.2014) (granting summary judgment to plaintiff, despite defense of consent from previous customer and lack of knowledge that phone number had been re-assigned); Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 639–40 (7th Cir.2012) (holding that consent must come from the current subscriber, and that a prior customer’s authority to consent lapses when a cell phone number is reassigned). Therefore, plaintiff’s claims must be dismissed on the basis of the alternative grounds set forth in the M & R.
The Magistrate’s report adopted by the Court can be found here.