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Home / Opinion Digests / Consumer Protection / Consumer Protection – TCPA – Cable Service Contract – Revocation of Consent – Prerecorded Messages – Disputed Bill

Consumer Protection – TCPA – Cable Service Contract – Revocation of Consent – Prerecorded Messages – Disputed Bill

Cartrette v. Time Warner Cable, Inc. (Lawyers Weekly No. 002-006-16, 20 pp.) (Louise Flanagan, J.) 5:14-cv-00143; E.D.N.C.

Holding: According to a Declaratory Ruling and Order by the Federal Communications Commission, consumers have the right to revoke their consent to be called by an automatic telephone dialing system or an artificial or prerecorded voice. Plaintiff revoked her consent repeatedly.

The court denies defendant’s motion for summary judgment on plaintiff’s claim under the Telephone Consumer Protection Act (TCPA).

The parties’ cable television service agreement is silent with respect to revocation of consent to autodialed and prerecorded-voice calls, the terms do not appear to be negotiable, and the use of an autodialing system is not an essential term of the agreement. The court rejects defendant’s argument that plaintiff could not revoke her consent.

Defendant’s Outbound Enterprise Interactive Voice Response system (IVR) does not have the capacity to generate a list of numbers using a random or sequential number generator; instead, it employs an algorithm to locate numbers associated with overdue customer accounts. Once identified, the IVR calls the numbers associated with those accounts and plays a prerecorded message.

In this manner, defendant’s IVR had the “capacity” to “store” and “dial” numbers as those terms are used in 47 U.S.C. § 227(a)(1) of the TCPA. The IVR represented hardware that, when paired with the billing system software, had the capacity to store and dial a list of telephone numbers without human intervention. Therefore, defendant’s IVR was an automatic telephone dialing system for purposes of the TCPA.

Furthermore, defendant does not dispute that, in calling plaintiff, it played prerecorded or artificial voice messages through its IVR. Independent of its prohibition on telephone calls made using an automatic telephone dialing system, the TCPA imposes liability on parties that use an artificial or prerecorded voice in calls to a cell phone without prior consent.

Debt collection calls are not exempt from 47 U.S.C. § 227(b)(1)(A)(iii); they are exempt only from the TCPA’s separate restrictions on “telephone solicitations.” Calls concerning plaintiff’s disputed debt were analogous to debt-collection calls, which fall within the scope of the TCPA.

Motion denied.

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