In Friedman v. Nat’l Programming Servs., LLC, No. CV 15-4866, 2016 U.S. Dist. LEXIS 40575 (C.D. Cal. March 25, 2016), the Central District of California granted summary judgment in favor of the defendant, National Programming Services (“NPS”), in a putative class action for alleged violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”).
National Programming Services (“NPS”) is an authorized retailer of DISH Network, the satellite TV provider. NPS contracts with a third party, RA Focus, which operates an inbound call service that assists individuals who have recently moved to select programming and other home services for their new address. RA Focus also contracts with other service providers besides NPS to offer different services to prospective customers.
The plaintiff alleges that he received an unauthorized text message from RA Focus advertising RA Focus’s services, and that RA Focus used an automatic telephone dialing system (“ATDS”) to send the message in violation of 47 U.S.C. § 227(b)(1)(A)(iii). The plaintiff filed a putative class action against NPS, seeking to hold NPS vicariously liable for the text message.
Without addressing the issue of vicarious liability, the district court held that NPS was entitled to summary judgment. Specifically, because there was an “absence of evidence” that the message was sent with dialing equipment that could generate random or sequential numbers (which is part of the statutory definition of an ATDS), the plaintiff could not prove an underlying TCPA violation by RA Focus.
After the plaintiff received the text message, he, along with his attorney, called RA Focus. They stated they were interested in obtaining DISH’s services, and were transferred to NPS. After being connected to NPS, however, the plaintiff hung up the phone. NPS called the plaintiff back. Independent of the original text message, the plaintiff also alleged that this return call violated the TCPA. The district court dismissed this claim, holding that there was “no TCPA violation because NPS had Friedman’s express prior consent when NPS returned the dropped call.”
Accordingly, the district court entered summary judgment in NPS’s favor on the plaintiff’s claims.