Judge Denies MTD in TCPA Case, Saying Outbound Message Can Not Become Inbound Call

A District Court judge in Ohio has denied a defendant’s motion to dismiss after it was sued for allegedly violating the Telephone Consumer Protection Act, denying the defendant’s argument that an outbound call can be turned into an inbound call and thus not subject to the TCPA.

A copy of the ruling in Charvat v. LE Energy can be accessed by clicking here.

The plaintiff received an automated telemarketing call to his residential phone. The message instructed the recipient of the call to “press one to see if you qualify for long term savings. Please press one now.”

The plaintiff pressed one to speak to a live individual so he could learn the identity of the caller. After learning the identity of the company that was marketing the services, the plaintiff filed a class-action lawsuit against the defendant, alleging it violated Section 227(b)(1) of the TCPA by initiating a call using an artificial or prerecorded voice to deliver a message without the consent of the called party.

The defendant argued that when the plaintiff pressed one turned the call from an outbound call to an inbound call, which is not subject to the TCPA. However, Judge Sarah Morrison of the District Court for the Southern District of Ohio, Eastern Division, did not have much love for the defendant’s argument. Accepting the argument would “eviscerate the protections afforded by the TCPA,” because every company would follow the defendant’s plan.

“If such action by a consumer transformed the nature of the call into something other than a call initiated to that individual, companies could completely avoid the prohibitions of the TCPA by leaving out any identifying information in a pre-recorded message in the initiating call and then putting the onus on the consumer to ‘press’ a number to speak with a live person,” Judge Morrison wrote.

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