District Court (Fla.) Says Collection Call That Was Re-Routed to Plaintiff Does Not Make Plaintiff the “Called Party” under the TCPA

In Thompson v. Portfolio Recovery Assocs., No. 19-cv-62220-SINGHAL/Valle, 2020 U.S. Dist. LEXIS 72971, at *4-6 (S.D. Fla. Apr. 25, 2020), the District Court granted summary judgment to a debt collector in a TCPA case.

A. The “Called Party”.  From what can be gathered, it appears case law on the undefined term “called party” is rather thin. Nevertheless, PRA insists Plaintiff was not the “called party”; rather, Plaintiff received PRA’s calls only because Cousin rerouted the calls to Plaintiff’s phone. Based on a comparable case out of the Western District of Pennsylvania cited to by PRA, the Court agrees. In Klein v. Commerce Energy, Inc., 256 F. Supp. 3d 563, 582 n.9 (W.D. Pa. 2017), the court wrote: “[W]here a person sets up the forwarding of calls made to a number assigned to one service to then forward to a number assigned to another service it is the person setting up the forwarding calls who in essence is making the call to the second service.” In other words, with the Pennsylvania district court’s logic applied here, Cousin is actually placing the phone calls to Plaintiff’s phone. PRA offers several cases likewise granting summary judgment for similar call-forwarding situations. Karle v. Sw.Credit Sys., 2015 WL 5025449, at *6 (D. Mass. June 22, 2015); Harper v. Credit Control Servs., Inc., 863 F. Supp. 2d 125, 127 (D. Mass. 2012). The Court agrees with PRA. Based on a commonsense approach to the facts in this dispute, PRA did not place phone calls to Plaintiff. PRA called Cousin. It hardly seems to be the case that the TCPA anticipated parties like Plaintiff would file suit against bona fide debt collectors for having called debtors who have re-routed their phone calls to other individuals. B. Use of Random of Sequential Number Generator.  PRA is entitled to summary judgment for another reason: The program it uses to place calls is not at ATDS. The TCPA prohibits the use of ATDS. 47 U.S.C. § 227(a)(1). An ATDS is “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.” Id. The “defining characteristic” of an ATDS is “the capacity to dial numbers without human intervention.” Legg v. Voice Media Grp., Inc., 20 F. Supp. 3d 1370, 1375 (S.D. Fla. 2014); Strauss v. CBE Grp., Inc., 173 F. Supp. 3d 1302, 1309 (S.D. Fla. 2016) (“To determine whether a dialer is a predictive dialing system, and therefore an ATDS, the primary consideration . . . is whether human intervention is required at the point in time at which the number is dialed.”). PRA’s software is called the Avaya Proactive Contact. The Avaya program does not have the capacity to produce or store telephone numbers using a random or sequential number generator. Indeed, as PRA notes, as a debt-collection company, it would make no business sense to call random or sequential numbers; PRA is not an advertising company. Avaya is not an ATDS under the plain language of the statute, nor does it meet the “defining characteristic” established in Legg.