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CEB Prac. Guide § 2B.03: Calls to Cell Phones -- "Making" a Call

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In Panzarella v. Navient Sols., Inc., No. 20-2371, 2022 U.S. App. LEXIS 16324, at *11-12 (3d Cir. June 14, 2022), the Court of Appeals for the 3rd Circuit held that Navient's dialer was an ATDS, but it's ATDS-capacity was not "used" to call .  As to the ATDS question, the Court of Appeals held: Applying this construction here, we find… Read More

In Toney v. Advantage Chrysler-Dodge-Jeep, No. 6:20-cv-182-WWB-EJK, 2021 U.S. Dist. LEXIS 141242, at *8 (M.D. Fla. July 27, 2021), Judge Embry denied class certification in a "ringless" voicemail message TCPA class action. In the Amended Complaint, Plaintiff alleges that he, and others similarly situated to him, received a "ringless" voicemail with a pre-recorded message from Advantage. (Doc. 40 ¶¶ 31,… Read More

In Bauman v. Saxe, No. 2:14-cv-01125-RFB-PAL, 2019 U.S. Dist. LEXIS 23351 (D. Nev. Feb. 13, 2019), Judge Boulware found that a TCPA plaintiff stated a claim against Twilio, who allegedly transmitted telemarking text messages in violation of the TCPA.  The facts alleged were as follows: The Saxe Defendants are: David Saxe; David Saxe Productions, Inc.; David Saxe Productions, LLC; Saxe Management,… Read More

In Payton v. Kale Realty, LLC,  2016 WL 703869 (N.D. Ill. 2016), Judge Lefkow held that a web service was exempt from the TCPA. Regardless of plaintiffs' self-defeating argument, the undisputed facts establish that VoiceShot provides telecommunication services rather than information services. While plaintiff is correct that VoiceShot's services include data storage to allow users to store contact lists and past… Read More

In Melito v. American Eagle Outfitters, Inc., 2015 WL 7736547, at *4-5 (S.D.N.Y., 2015), Judge Caproni dismissed a TCPA class action against Experian for unsolicited texts sent by American Eagle in connection with a marketing campaign.  First, the Court found no direct liability under the TCPA. The plain language of section 227(b)(1)(A)(iii) imposes liability upon persons that “make” a telephone call… Read More

The FCC's Omnibus Ruling, along with the comments of Commissioners Wheeler, Clyburn, Rosenworcel, Pai, and O'Rielly can be found here. We will be evaluating the Ruling, and Commissioners' comments.   For questions regarding the Ruling and its impacts, please contact the group leaders of Severson & Werson's TCPA team, Eric Troutman ( or Scott Hyman ( Read More

In Clark v. Avatar Technologies Phl, Inc., 2014 WL 309079 (S.D.Tex. 2014), Judge Atlas granted a Motion to Dismiss under the TCPA filed against a VoIP service provider. Plaintiff alleges that, in July 2013, Avatar made a call to his cellular telephone using an “artificial or prerecorded voice.” See  id., ¶ 14. Plaintiff alleges that Avatar made the call using… Read More

In Daniels v. Comunity Lending, Inc., 2014 WL 51275 (S.D.Cal. 2014), Judge Hayes found Plaintiff’s FDCPA and TCPA claims not adequately pleaded. The FDCPA applies to debt collectors, but not to creditors. See Mansour v. Cal–Western Reconveyance Corp., 618 F.Supp.2d 1178, 1182 (D.Ariz.2009). Under the FDCPA, a “debt collector” is “any person who uses any instrumentality of inter-state commerce or… Read More

In Iniguez v. CBE Group, Inc., 2013 WL 6331207 (E.D.Cal. 2013), Judge Mendez denied a Motion for Reconsideration that sought to argue his previous conclusion that the TCPA does, in fact, apply to auto-dialed debt collection calls to cellular telephones.  The three cases cited and briefly discussed by CBE in this motion for reconsideration fail to show how manifest injustice… Read More

In Ashley v. General Elec. Capital Corp., 2013 WL 6133562 (M.D.Fla. 2013), Judge Steele allowed a TCPA case to go forward on a wrongfully called party theory.  In early June 2012, plaintiff received a telephone call to her cellular phone from defendant. (Id., ¶ 14.) Defendant left a prerecorded voice mail for a person by the name of “Rosa,” seeking… Read More

In Mashiri v. Ocwen Loan Servicing, LLC, 2013 WL 5797584 (S.D.Cal. 2013), Judge Lorenz found a TCPA claim adequately pleaded.  First, Judge Lorenz rejected the Defendant’s argument that the TCPA does not apply to debt collectors placing calls to wireless telephone numbers by use of an autodialer: The TCPA contains separate provisions for calls made to residential telephone lines and… Read More

In Morgan v. Branson Vacation & Travel, LLC, 2013 WL 5532228 (W.D.Okla. 2013), Judge Cauthron granted partial summary judgment on a TCPA claim, finding that ‘good faith’ was no defense to the claim. It is undisputed that Branson placed at least 37 calls to the 6743 number and that those calls were made with an automatic dialing system subject to… Read More

In Levy v. Receivables Performance Management, LLC--- F.Supp.2d ----, 2013 WL 5310166 (E.D.N.Y. 2013), Judge Bianco found an absence of consent under the TCPA for a debt collector calling a consumer's cellular telephone where the consumer had given a prior cellular number to the creditor. With respect to the issue of prior express consent, both the FCC and various federal courts… Read More

In Knutson v. Schwan's Home Service, Inc., 2013 WL 4774763 (S.D.Cal. 2013), Judge Curiel certified a TCPA class action in what appears to be the first TCPA class certified within the 9th Circuit outside of the “single source” context. Schwan's is in the business of delivering frozen foods to residential customers. From November 2008 through November 13, 2011, Schwan's contracted… Read More

In Iniguez v. The CBE Group, --- F.Supp.2d ----, 2013 WL 4780785 (E.D.Cal. 2013), Judge Mendez addressed the propriety of a class-action lawsuit brought against a debt collection agency under TCPA by an “unintended recipient” of collection calls.  The lawsuit was based on Plaintiff's allegations that Defendant placed numerous calls to her cell phone seeking to collect a debt owed… Read More

In Forrest v. Genpact Services, LLC, --- F.Supp.2d ----, 2013 WL 4516479 (M.D.Pa. 2013), Judge Nealon denied a Motion to Dismiss that was brought on the basis that the TCPA plaintiff had not alleged that she actually answered the autodialed calls to her cellular telephone. Defendant argues that Plaintiff's TCPA claims must fail because she fails to allege that she… Read More

In Gager v. Dell Financial Services, LLC, --- F.3d ----, 2013 WL 4463305 (2013), the Court of Appeals for the Third Circuit held that the TCPA permits a consumer to revoke consent to be called by an autodialer on their cellphones. Dell's principal argument is that the TCPA's silence as to whether a consumer may revoke her prior express consent… Read More

In Castro v. Green Tree Servicing LLC, --- F.Supp.2d ----, 2013 WL 4105196 (S.D.N.Y. 2013), Judge Ramos found that including a GLB Privacy Notice with a collection letter was deceptive.  Judge Ramos also denied the defendant’s Motion for Summary Judgment on Plaintiff’s TCPA claim.  Judge Ramos found questions of fact that an auto-dailer was used and that trapping a consumer’s… Read More

In Smith v. Progressive Financial Services, Inc., 2013 WL 3995004 (D.Or. 2013), Judge McShane found that a student loan taken out to attend an aviation academy was still a ‘consumer’ debt under the FDCPA. Contrary to defendant's argument, “education” encompasses something broader than mere investment in pursuit of profit.   Brown v. Bd. of Ed. Of Topeka, Shawnee Cnty, Kan., 347… Read More

In Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 2491052 (S.D.Fla. 2013), Judge Scola certified his previous ruling ( for interlocutory appeal to the 11th Circuit Court of Appeals.  This would also draw into question subsequent decisions that rely on Mais, including Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 2384245 (S.D.Fla. 2013) discussed ( – at least… Read More

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