5th Cir. Says No ATDS Used When Pre-Recorded Message Did Not Actually Play

In Ybarra v. Dish Network, L.L.C., 2015 WL 6159755, at *4 (C.A.5 (Tex.),2015), the Court of Appeals for the Fifth Circuit held that the TCPA was not violated when a dialer system designed to leave pre-recorded messages only when a “live” voice is reached did not leave any messages, but disconnected, when it reached an answering machine.

The TCPA makes it unlawful to make any call using an “automatic telephone dialing system.” In contrast, it is not unlawful under the TCPA to make a call using an artificial or prerecorded voice system. Rather, what is precluded by the TCPA is making a call using “an artificial or prerecorded voice.” The omission of the word “system” must be given effect. See Burnett Ranches, Ltd. v. United States, 753 F.3d 143, 148 (5th Cir .2014).  We hold that making a call in which a prerecorded voice might, but does not, play is not a violation of the TCPA. Instead, the prerecorded voice must “speak” during the call. A party who makes a call using an automatic telephone dialing system uses the system to make the call, regardless of whether the recipient answers, and thereby triggers TCPA liability. With a prerecorded voice, though, unless the recipient answers, an artificial or prerecorded voice is never used. Indeed, the several cases that Ybarra cites for the proposition that making a call with a prerecorded voice is sufficient for liability are actually cases involving the use of an ATDS. See, e.g., Castro v. Green Tree Servicing LLC, 959 F.Supp.2d 698, 720 (S.D.N.Y.2013).