Southern District of Florida Finds Telephone Dialing System Not an ATDS Under the TCPA

This article previously appeared on the Burr Foreman Consumer Finance Litigation blog and is re-published here with permission. Katherine West also contributed to this article.

In Ferrer v. Bayview Loan Servicing, LLC, No. 15-20877-Civ-Scola, 2018 WL 582584 (S.D. Fla. Jan. 26, 2018), the Southern District of Florida determined that a telephone dialing system that was incapable of predictively dialing, storing, or independently producing telephone numbers and could not place a call without human input was not an automatic telephone dialing system (“ATDS”) within the meaning of the Telephone Consumer Protection Act (“TCPA”).

Plaintiff Maria Ferrer (“Plaintiff”) filed suit against Bayview Loan Servicing, LLC and other defendants (“Bayview”) alleging, among other things, that Bayview violated the TCPA. The TCPA prohibits calls made “using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . or any service for which the called party is charged for the call” unless the call is for emergency purposes or the called party has provided prior consent. 47 U.S.C. § 227(b)(1)(A)(iii). Thus a plaintiff asserting a claim under the TCPA must establish that the call(s) at issue were made to a cell phone number, the defendant made the call(s) using an ATDS or an artificial or prerecorded voice, and the call was made without the called party’s prior express consent. See Ferrer, 2018 WL 582584, at *6.

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