In Telephone Consumer Protection Act (“TCPA”) autodialer cases, it is important for defendants to put plaintiffs to their evidentiary burden of proving that an autodialer actually was used. As one recent case discussed below demonstrates, being active on this front and keeping records showing how a company lawfully engages in telemarketing can save time and money in potential litigation. We have blogged previously about TCPA autodialers cases (here, here, and here).

At the end of December 2015, in Norman v. Allianceone Receivables Mgmt., Inc., No. 15-1780 (7th Cir.), the Court of Appeals for the Seventh Circuit upheld a lower court’s award of summary judgment in favor of the defendant company in a TCPA autodialer lawsuit. The plaintiff alleged that the defendant company used an autodialer to place an uninvited telemarketing call to his home; the defendant company insisted, however, that no autodialers were used. 

Previously, the district court granted summary judgment to the defendant, holding that no reasonable jury could find in favor of the plaintiff given the evidence provided. Indeed, the defendant provided a call log and a declaration from its vice president saying that the calls were not placed using an autodialer. The court held that this evidence was admissible as a business record.

The plaintiff, however, explained, that when he answered calls from the defendant, he heard a pause, clicking, and dead air. The plaintiff submitted a Federal Communication Commission (“FCC”) guide explaining that autodialers “often” result in “hang ups” and “dead air.” The district court refused to admit the FCC guide into evidence, ruling that the excerpt was hearsay not within any exception. The court granted the defendant’s motion for summary judgment.

The Seventh Circuit agreed and affirmed the award of summary judgment. It held that the district court’s evidentiary rulings were appropriate and further noted that, even if the FCC guide was allowed into evidence, it would not be sufficient to create a dispute of fact because “the guide said only that autodialers often produce dead air; it did not say the converse - that dead air means that a call was autodialed.”

This ruling represents another arrow in the TCPA defense counsels’ quiver and adds to the rising wave of judicial rejections of TCPA litigation. Nevertheless, as readers of this blog know, telemarketing remains a hot area for private litigation (a list of recent TCPA complaint filings is available here ). Check back regularly for updates as we follow current litigation.