How do you know if a call that you received and answered contained a prerecorded message? Well, a District Court judge in Illinois has determined that if calls received by an individual sounded identical, had the same voice, used the same words, had the same intonation, had the same speech pattern, were commercial, were generic and didn’t mention the individual by name, were unsolicited, were incessant, and continued despite the individual’s express request that the calls stop, that’s more than enough to defeat the defendant’s motion to dismiss a claim it violated the Telephone Consumer Protection Act.
The Background: The plaintiff received a call with an offer to enroll in cooking school. She told the individual who called that she wasn’t interested, asked that she not be contacted anymore, and added that she wanted to be placed on the company’s do-not-call list.
- The plaintiff subsequently received 30 calls from the defendant over the next few months. Most of the calls were received as prerecorded voicemails many of which were incomplete and identical, according to the complaint.
- The plaintiff filed suit, alleging the defendant violated two sections of the TCPA — Sections 227(b)(1)(A)(iii) and § 227(b)(1)(B).
The Ruling: Unfortunately for the plaintiff, Section 227(b)(1)(B) of the TCPA only applies to residential lines. It does not apply to cell phones, even though, as Judge Steven C. Seeger of the District Court for the Northern District of Illinois noted some people live on their cell phones and others practically take up resident on them. Judge Seeger had to dismiss that claim against the defendant.
- The defendant wasn’t as successful on the other claim, which it argued did not plausibly allege that the calls were prerecorded. Some of the calls, the defendant noted, came from different states, which undermines the plaintiff’s theory that the calls had the same voice.
- But Judge Seeger listed all the ways that calls could have been prerecorded and ruled that was more than enough for the case not to be dismissed. Maybe the defendant can point to facts that undermine the plaintiff’s argument, Judge Seeger noted, but that is for a motion for summary judgment to decide, not a motion to dismiss.
