This is your reminder, that YES, prerecorded calls are STILL actionable under the TCPA, even if an ATDS wasn’t used.

A recent case, Reuben Drake v. Synchrony Bank, et al. serves as a noteworthy example.

In Reuben Drake v. Synchrony Bank, et al, Drake (pro se) accused Synchrony Bank of bombarding him with 109 phone calls, all accompanied by prerecorded messages. Drake’s claim also alleged the use of an ATDS for these calls.

Based on these purported violations, Drake alleged Synchrony Bank violated the TCPA, Maryland TCPA, Maryland Consumer Protection Act and common law invasion of privacy.

Synchrony Bank moved to dismiss the TCPA and Maryland TCPA claims to the extent they were premised on the use of an ATDS.

However, Drake conceded that he meant to remove those allegations and inadvertently filed the wrong version of the complaint. Consequently, the Court granted Synchrony Bank’s motion to dismiss Drake’s TCPA and Maryland TCPA claims to the extent they alleged use of an ATDS.

But the TCPA and Maryland TCPA claims still survived.

Why?

To state a claim for recovery under the TCPA and Maryland TCPA, the plaintiff must allege that the defendant: (1) called his cellular phone; (2) using an automatic telephone dialing system or an artificial or prerecorded voice; (3) without his prior express consent (or any of the other exceptions).

Emphasis on the “or.”

The critical factor here is that Drake did, indeed, allege that Synchrony Bank repeatedly called him and left prerecorded messages. This demonstrates that even in the absence of an ATDS, the TCPA and Maryland TCPA claims could still proceed.

So, this is just a reminder that prerecorded calls are still dangerous and to be careful out there!