District Court (Tex.) Grants MSJ to TCPA Plaintiff without Proof of ATDS, So Long as Plaintiff Could Prove Receipt of Automated Voice

In Ybarra v. Dish Network LLC, 2014 WL 6085292 (N.D.Tex. 2014), Judge O’Connor granted summary judgment to a TCPA Plaintiff without requiring the Plaintiff to demonstrate the use of an ATDS, so long as the Plaintiff could show that a pre-recorded voice was used.

The TCPA prohibits calls using an ATDS or a prerecorded voice. 47 U.S.C. § 227(b)(1)(A). DISH uses the CISCO UCE Outbound Option, Version 8.5.4 (the “CISCO Dialer”). DISH Interrog. Resp., App. 109, ECF No. 31. “All payment reminder calls made by Defendant are made from the telephone number (866) 667–8047 using the CISCO Dialer.” Id. at App. 110. Without needing to determine whether the CISCO Dialer is an ATDS, Defendant has admitted to using a prerecorded voice in calls from the 8047 number. See Def.’s Opp’n Mot. Summ. J. 14, ECF No. 48. Because the TCPA prohibits making any call using a prerecorded voice, DISH concedes that the prerecorded voice was present in the calls from the 8047 number regardless of whether Ybarra triggered it with a positive voice. 47 U.S.C. § 227(b)(1)(A); Def.’s Opp’n Mot. Summ. J. 14, ECF No. 48 (“A prerecorded voice is ‘use[d]’ on telephone calls where the call is met with a positive voice.”). The Court finds that there is no dispute as to whether the calls from the 8047 number meet the requirements of the TCPA. Accordingly, Plaintiff is entitled to judgment as a matter of law to the extent of the calls from the 8047 number.