On October 20, 2015, the US Court of Appeals for the Fifth Circuit held that a party is not liable under the Telephone Consumer Protection Act (TCPA) for making an artificial or prerecorded voice call unless the artificial or prerecorded voice actually plays during the call (Ybarra v. Dish Network, L.L.C., No. 14-11316, (5th Cir. Oct. 20, 2015)).

Between May 2013 and October 2013, Dish Network, L.L.C. called Armando Ybarro's cell phone number 15 times in an attempt to collect an overdue bill from the phone number's previous owner. Dish used a Cisco Dialer to make seven of these calls. Dish's Cisco Dialer system plays prerecorded messages when calls are met by a "positive voice," which can be either an actual human voice or a recorded voicemail greeting. Three of the seven Cisco Dialer calls to Ybarro were met by a positive voice and therefore played the prerecorded message.

Ybarra sued Dish in the US District Court for the Northern District of Texas for violating the Telephone Consumer Protection Act (TCPA), which prohibits parties from making certain telemarketing calls that use either an:

Ybarra alleged that Dish used both an ATDS and an artificial or prerecorded voice.

The district court granted Ybarra's summary judgment for the seven Cisco Dialer calls. Dish admitted to using a prerecorded voice in the three Cisco Dialer calls that were met by a positive voice. The court did not determine whether the Cisco Dialer was an ATDS because Dish had admitted to using a prerecorded voice in some of the calls.

Dish appealed the district court's grant of summary judgment and argued that the four Cisco Dialer calls that were not met by a positive voice did not violate the TCPA. Dish argued that none of these calls used a prerecorded voice because the prerecorded voice did not actually play.

The US Court of Appeals for the Fifth Circuit reversed the district court's decision and found that the four Cisco Dialer calls that did not play the prerecorded voice did not violate the TCPA. The court held that to be liable under the artificial or prerecorded voice section of the TCPA, a party must make a call and an artificial or prerecorded voice must actually play during that call.

The court reached this holding after:

The court concluded by finding that with a prerecorded voice call, the prerecorded voice is never actually used until the recipient answers the phone.

This decision clarifies what it means to use an artificial or prerecorded voice in violation of the TCPA. Under this ruling, a party does not violate the TCPA by making a call in which a prerecorded voice could play, but does not actually play. This ruling could limit liability for companies under the TCPA and allow them to reach out to consumers without violating federal telemarketing laws.

However, this decision does not change liability for parties that use an ATDS. A party that makes a call using an ATDS uses the system to make the call, regardless of whether the recipient answers, and is therefore subject to TCPA liability.

For more information on the TCPA, see: