Pennsylvania Record

Sunday, October 20, 2019

Federal judge paves way for treble damages in 'robo-calling' lawsuit

By Andrew Burger | Aug 29, 2016

HARRISBURG – Lawsuits alleging "robo-calling" on the part of telemarketers, as well as debt collectors, have been on the rise in recent years, in parallel with the growing use of automated telephone dialing and voice calling systems.

On Aug. 5, a judge with the U.S. District Court for the Middle District of Pennsylvania denied a defendant's motion and granted in part a plaintiff's motion for summary judgment, paving the way for the plaintiff to pursue treble damages in Manuel v. NRA Group, LLC.

The lawsuit revolves around the issue of whether NRA Group's use of the Mercury Predictive Dialer qualifies as an automatic telephone dialing system and whether NRA Group knowingly and willingly made use of such technology in violation of the Telephone Consumer Protection Act (TCPA). 

NRA argued that the Mercury Predictive Dialer it used to make 149 calls to Peterson Manuel in an attempt to collect an alleged debt did not qualify as automatic telephone dialing system as defined by the TCPA.

Debt collection agents had to first press a key in order to make a call, which qualifies as human action, it argued, adding that the system is a complex piece of machinery that requires an expert to explain how it works.

The automated telephone dialing technology places a series of phone calls in advance, puts them in a queue and then predicts when a collection agent will press the specified key (F4) to connect an agent to the receiving party.

Denying the defendant's motion and granting in part the plaintiff's motion for summary judgment, Judge Christoper C. Conner referred to the TCPA and expert testimony given during the discovery process. He concluded that there was no genuine issue of material fact regarding whether the Mercury Predictive Dialer qualified as an automatic telephone dialing system per the TCPA.

More specifically, the judge pointed out that the system automatically makes a series of live calls and that agents need only press a key to be connected to an already established connection. That cannot be construed as a human agent actually initiating the calls, the judge decided.

Conner also noted that calls placed by Mercury Predictive Dialer are automatically terminated if an answering machine is reached. ¨In this instance, no human involvement is required at any point during the call,¨ he explained.

Per TCPA, the judge's decision paves the way for Manuel to pursue treble damages in the case. TCPA allows for treble damages if plaintiffs can meet or exceed the burden of proof necessary to show that the defendant knowingly and willingly made use of an automated telephone dialing system in violation of the act's provisions.

"Such lawsuits tend to be very fact-specific as to how the violation occurred – whether or not calls were placed by randomly dialing numbers, whether or not a recipient asked not to be contacted again or if they initially had agreed to receive calls but subsequently asked not to be called again," Richard Ernsberger, an associate at Behrend & Ernsberger in Pittsburgh, told the Pennsylvania Record.

The Federal Communications Commission provided clear guidance regarding the issue of ¨robo-calling¨ in an effort to help telemarketers, debt collectors and others that make use of automated telephone dialing systems avoid TCPA violations, Ernsberger added.

The FCC on July 10, 2015, issued a ruling that clarified how automatic telephone dialing systems are defined in the TCPA.

In order to qualify, systems need to meet two principal criteria: they must have the capacity to store or produce telephone numbers to be called using a random sequential number generator and also have the capacity to automatically dial them.

In a dissenting opinion, FCC Commissioner Ajit Varadaraj Pai wrote that the declaratory order "transforms the TCPA from a statutory rifle shot targeting specific companies that market their services through automated random or sequential dialing into an unpredictable shotgun blast covering virtually all communications devices." 

Smartphone owners who make use of automated telephone dialing had yet to be sued at the time, but Pai added that such lawsuits were sure to follow. 

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