Court Grants Summary Judgment to Defendant in TCPA Case Involving Reassigned Telephone Number

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A Minnesota District Court judge granted summary judgment on November 13 in favor of the defendant in Roark v. Credit One Bank, N.A., a Telephone Consumer Protection Act lawsuit regarding autodialers leaving pre-recorded messages on a consumer’s cell phone. From September through December 2015, Credit One’s vendors called plaintiff Stewart Roark’s cell phone 140 times and left four pre-recorded messages urging him to return the call. In December 2016, Roark called Credit One and stated that he was not a Credit One customer, resulting in Credit One placing him on its do-not-call list and ceasing calls to him. As it turns out, the actual Credit One betting data user list customer’s phone number was reassigned to Roark’s cell phone number. Credit One stated it had no knowledge the number was reassigned because the actual Credit One customer never provided notice of the change in their number, and Credit One’s caller ID populated with the Credit One customer’s caller information when Roark called Credit One. Roark sued Credit One for violating the TCPA.

The TCPA prohibits use of an autodialer to call an individual’s cell phone without express consent. The TCPA defines an “autodialer” as “equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” In 2015, the FCC ruled that “capacity” includes the system’s current and potential capabilities.

In arriving at its holding, the Minnesota District Court relied on the D.C. Circuit Court decision in ACA International v. FCC. In ACA, the Court held that the Federal Communications Commission’s definition of “capacity” was overly broad; considering the potential capability of a phone would mean that nearly every phone could be considered an autodialer. Also, the Minnesota District Court followed the test set by the Second and Third Circuit Courts of Appeals in that the issue is not about the system’s potential capability; rather, the issue is whether a device has the present capacity to function as an autodialer.