Not to be lost in the Eleventh Circuit’s recent Glasser opinion, brilliantly summarized by the Czar here, is the court’s shorter decision on TCPA liability in the context of “artificial or prerecorded voice” calls.

As a brief summary of the issue, in Glasser, the district court awarded trebled damages to one of the plaintiffs against a student loan servicer, which called the plaintiff thirty-five times regarding unpaid student loans. Based on the evidence, presented to the district court on summary judgment, the student loan servicer was found to have “willfully” violated the TCPA as a matter of law. Though, out of the thirty-five calls placed to the plaintiff, the trebled damages ruling applied only to thirteen of the calls, which “used an artificial or prerecorded voice.”

As the Czar recounts, most of the court’s landmark opinion concerns the proper interpretation of an “automatic telephone dialing system.” However, in the opinion’s remaining few pages, the court noted that its ATDS holding “doesn’t bear on” the trebled damage award because “using recordings to call someone without her consent is an independent basis for liability under the [TCPA].” Thus, while the court’s ATDS ruling upends a substantial amount of TCPA litigation in the Eleventh Circuit, one part of the TCPA remains fairly untouched – the TCPA’s restrictions on “artificial or prerecorded voice” calls.

And tucked sway at the very end of the opinion is an unfortunate little holding– that a “willfulness” finding is appropriate anytime a caller continues to call after being aware of a “revocation.”  According to the evidence before the district court, the servicer “admitted” that the plaintiff “contacted a representative and revoked consent to be called” and, “[d]espite this interaction,” the servicer “kept contacting” plaintiff and “kept playing recordings.” On this record alone the Glasser panel concluded that Defendant “knowingly used prohibited technology to contact someone it knew had revoked her consent.” And that is all that is required to treble damages under the TCPA in the Eleventh Circuit.

Notably some courts require a higher standard–for instance mandating a Plaintiff prove that the Defendant knew of the TCPA, knew its equipment was subject to the TCPA, knew it lacked consent, and otherwise intended to act in violation of the statute. None of that was needed in the Eleventh Circuit’s view, however.

Still, we need not spend too much time on the Debbie Downer portion of the ruling–it was a great win for the Defense. And although the Plaintiff may now recover treble damages for the thirteen pre-recorded messages at issue in the case, that is a far cry from the massive recovery Plaintiff would have seen had Glasser come down in her favor on the ATDS issue.

So, what is the takeaway here? Though ATDS claims are now much narrower in the Eleventh Circuit, use of “artificial or prerecorded voices” to contact individuals is not impacted by that ruling. And willfulness is not hard to prove in the context were a Plaintiff can establish a revocation took place according to the caller’s own records.