Judge Denies MSJ in TCPA Case Over Pre-Recorded Message Asking Recipient To Wait For Representative

In an interesting twist on what defines an automated telephone dialing system, a District Court judge in Florida has denied a defendant’s motion for summary judgment, ruling that an automated message at the beginning of a call asking the recipient to wait for a representative falls under the scope of the Telephone Consumer Protection Act.

A copy of the ruling in Brown v. Ocwen Loan Servicing can be accessed by clicking here.

There is a lot of backstory in this particular case, involving a couple’s fight to save their home from foreclosure. During the process, ownership of the phone number in question was transferred from a wife to her husband and the defendant placed a lot of calls trying to resolve the situation. Ultimately, the couple filed suit, alleging they were called using an ATDS or that the calls were made using an artificial or pre-recorded voice.

Initially, the judge determines that the technology used by the defendant does not meet the definition of an ATDS, but then he moves on to the issue of the pre-recorded voice.

Neither side can agree on exactly how many calls included the pre-recorded voice. The plaintiffs suggest it was about 100 or so “where they were put into a hold queue and heard a prerecorded or artificial voice message asking them to hold for a representative.” About half of those calls were made after the plaintiffs allegedly revoked consent to be contacted. The defendants counter that only four calls included the pre-recorded message.

Judge Tom Barber from the District Court for the Middle District of Florida, Tampa Division, determined that lack of a consensus precluded him from ruling on either side’s motion for summary judgment.

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