Judge Grants MSJ for Defendant in TCPA ATDS Case

A District Court judge in Indiana has granted a defendant’s motion for summary judgment in a Telephone Consumer Protection Act case, ruling that the defendant did not use an automated telephone dialing system when contacting the plaintiff on his cell phone to collect on an unpaid debt after he had revoked consent to be contacted.

A copy of the ruling in the case of Creech v. Navient can be accessed by clicking here.

The plaintiff’s case appeared to have been hampered by the fact that he was representing himself and did not have an attorney. By confusing opinion with relevant and supported facts, the plaintiff’s lack of admissible evidence doomed his own motion for summary judgment while also hampering efforts to fight the defendant’s cross-motion for summary judgment, noted Judge Philip P. Simon of the District Court for the Northern District of Indiana.

The plaintiff claimed that the defendant violated the TCPA by contacting him on his cell phone using an ATDS without the necessary consent to do so. But the defendant submitted enough evidence to convince Judge Simon that the technology it used to make the calls to the plaintiff were not done so using an ATDS because the technology lacked the capacity to store or produce randomly or sequentially generated phone numbers, as defined by the Supreme Court in Facebook v. Duguid.

“Creech’s attempt to create an issue of his revocation of consent to receive telephone calls from Navient is a non-starter, because Creech is unable to rebut Navient’s evidence that its calls to Creech did not violate the TCPA , either its ban on the use of ATDS or on the use of artificial or prerecorded voices,” Judge Simon wrote. “The TCPA requires consent only if the call uses an ATDS or an artificial or prerecorded voice, neither of which is proved here.”

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