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Mixed Decision: Court Deems Automatic Maintenance Request System Triggered By Resident Calls Not An ATDS, But Treats Resident Voice Mails Conveying The Requests “Prerecorded Voice[s]” Within Scope of TCPA

In a positive ruling for TCPA defendants, the Northern District of Georgia declined to treat a maintenance request system as an ATDS where human intervention (here in the form of resident voice messages requesting maintenance) was necessary to trigger the system to route the voice mail requests to maintenance technicians.  See July 11, 2019 Order, Broughton v. DJ Acquisitions, LLC, Civil Action No. 1:19-CV-00833-LMM (N.D. Ga.)   That said, the court declined to dismiss plaintiff’s TCPA claim against his former employer based on allegations that the resident calls were “prerecorded voice[s]” falling with the scope of the statute.

Plaintiff had been hired as a maintenance technician at an apartment complex in November 2017, but was terminated during his 90-day probationary period.  The apartment complex had an automated maintenance notification system named “Call Max” that allowed residents of the property to leave recorded messages requesting apartment maintenance.  Upon receiving a maintenance request, Call Max would then automatically place a separate call to the technician’s cell phone which would then play the voice message left by the resident.  Plaintiff claims that he kept receiving resident calls—68 of them allegedly—even after his termination and request to the property manager to discontinue the message forwarding. 

Defendant moved to dismiss, focusing on the fact that the calls to Plaintiff did not originate from an ATDS.  Adopting the ACA International standard whereby an autodialer must have the ability to dial numbers without human intervention in order to qualify as an ATDS, the Court accepted defendant’s argument that the Call Max system is not an ATDS.  Plaintiff’s own allegations stated that the system does not contact the on-call maintenance technician until “[r]esidents of Laural Park Apartments…call into the Call Max system and leave a message requesting maint[enance] at their apartments.” In other words, Call Max does not call the technician automatically.  Even the fact that the system would keep notifying the technician every 15 minutes until he responded did not render it an ATDS.   The court thus rejected the argument that human intervention must occur at the time of dialing for a system not to be an ATDS.   

Given the non-commercial nature of these calls and the fact that an ATDS was not used, how does the TCPA come into play?  Plaintiff claimed that the messages forwarded to him constituted “prerecorded voice[s]” and therefore fall within the scope of 47 U.S.C. § 227(b)(1)(A).  Due to the dearth of case law and FCC authorities on whether the voice mails could be considered “prerecorded voice[s]”, the court considered the dictionary definition of “prerecorded” as something “recorded in advance,” and determined that because the plaintiff had no ability to interact with a “live” person upon receiving the calls (and the calls were received in 15 –minute intervals until the system registered the maintenance request as being resolved), they fall within the scope of the TCPA. The court also declined to extend the FCC’s exemption for non-commercial calls (see 47 C.F.R. § 64.1200(a)(3)(ii)-(iii)) to cell phone calls where no legislative or case law authorities supported such an extension. 

This case is a perfect example of the TCPA’s broad application and failure to provide guidance to courts facing unusual fact patterns like the present one. At a minimum, there should be clarification on the scope of “prerecorded voice[s]” and, given the prevalence of cell phones, consideration should be given to extending the FCC exemption for non-commercial calls.

© Copyright 2019 Squire Patton Boggs (US) LLP


About this Author

Nicholas Zalany Commercial Litigation Attorney

Nicholas P. Zalany focuses his practice on general and complex commercial litigation matters, including in the areas of commercial contract disputes, business torts and insurance coverage disputes. Nick also provides legal counsel to insurance companies, trade associations and healthcare systems in matters involving insurance law and regulatory compliance.

Prior to joining the firm, Nick worked in both the private and public sectors, including as an associate in the Columbus office of a national boutique litigation firm and as a staff attorney for two Ohio state court judges. Before...