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Southern District of Florida Court Holds that TCPA Plaintiff is Not the “Called-Party” Due to Call Forwarding

A court in the Southern District of Florida recently held that the plaintiff in a TCPA suit was not the “called party” under the statute because he received the calls in question only because his cousin rerouted them to the plaintiff’s phone. Thompson v. Portfolio Recovery Associates, LLC, No. 19-62220 (S.D. Fla. Apr. 25, 2020).

In Thompson v. Portfolio Recovery Associates, LLC, Plaintiff Andrew Thompson brought a TCPA suit against PRA—a debt collection company—for seventeen calls made to the Plaintiff’s cousin’s VoIP number that were automatically rerouted by the Plaintiff’s cousin to Plaintiff’s phone and answered by Plaintiff.

PRA moved for summary judgment based on two separate theories. First, PRA claimed that, because PRA dialed Plaintiff’s cousin’s number, Plaintiff was not the “called party.” Second, PRA argued that the program it used to place the phone calls was not an ATDS because it did not use “randomly or sequentially generated numbers.” The Court agreed with both of PRA’s arguments and issued a short opinion granting PRA’s motion for summary judgment.

Regarding the “called party” argument, the Court noted that decisions on the issue were “thin,” but agreed with the rationale in Klein v. Commerce Energy, Inc. (256 F. Supp. 3d 563 (W.D. Pa. 2017)) cited by PRA. The Klein court stated that “where a person sets up the forwarding of calls made to a number assigned to one service to then forward to a number assigned to another service it is the person setting up the forwarding calls who in essence is making the call to the second service.” Based on this logic, the Court reasoned that the cousin actually placed the phone calls to Plaintiff’s phone, not PRA.

The Court went on to hold, in any event, that PRA’s dialing system—the Avaya Proactive Contact—was not an ATDS. PRA argued that because the Avaya system lacked the capacity to generate random or sequential numbers and then dial them, it was not an ATDS based on the Eleventh Circuit’s recent decision in Glasser v. Hilton Grand Vacations, LLC, 948 F.3d 1301 (11th Cir. 2020). The Court held that the Avaya system did not have the defining characteristics of an ATDS—“the capacity to dial numbers without human intervention.” The Court also reasoned that it would not make sense for PRA to use an ATDS to make its calls because PRA is a debt collection company and would not benefit from generating numbers in the way an advertising company would. Curiously, the Court did not cite Hilton in support of its ruling that the system was not an ATDS.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume X, Number 139


About this Author

Justin Kay, class action lawyer, Drinker Biddle

Justin O. Kay focuses on defending complex civil matters in federal court, state court, and before federal agencies. He is a regular contributor to the TCPA blog, a defense-oriented resource analyzing TCPA-related litigation and regulatory developments. Justin is a Vice Chair of the firm’s Class Actions Team and a member of the Telephone Consumer Protection Act Team. Justin is also the Chair of the firmwide National Hiring Committee, which oversees the recruiting and hiring of associates.

Deanna J. Hayes Litigation Attorney Drinker Biddle

Deanna J. Hayes assists in various stages of legal proceedings and trial preparation, including conducting research, writing motions, and drafting other memoranda. Before joining the firm, Deanna was a judicial intern for the Hon. Michael Erdos, Pennsylvania Court of Common Pleas, Criminal Division.

In law school, Deanna was selected to serve as a Littleton Fellow for Penn Law’s Legal Practice Skills curriculum. As a Littleton Fellow, Deanna taught oral communication and legal writing skills to a small group of first-year law students. Deanna was also a member of Penn Law’s Mediation Clinic and acted as a third-party neutral mediator in matters throughout Philadelphia.

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