Well we are all still trying to cope with the fallout from Morgan and now we have something new to worry about—wait queue messages.

Framing the issue—when a predictive dialer places a call and there is no agent available to take the call a pre-recorded voice message is sometimes played to consumers while the system places them on hold to await the availability of an agent. As these systems are designed to accurately predict agent availability this should be a relatively rare event. Nonetheless, it has never been held that the mere playing of a “we’ll be right with you” message on an outbound call is per se subject to the TCPA—until now.

But good news first.  The Court applied the statutory ATDS definition—requiring random or sequential number generation—in this TCPA suit against a user of *another* popular predictive dialer software in Brown v. Ocwen Loan Servicing Llc, Case No. 8:18-cv-136-T-60AEP, 2019 U.S. Dist. LEXIS 151236 (M.D. F. Sept. 5 2019). The court concluded that the device used was not an ATDS because it did not have the required statutory functionalities.

Importantly, the Brown court accepted the Defendant’s evidence that the Defendant’s predictive dialer was not “capable of generating and dialing random or sequential numbers”—the precise opposite conclusion reached in Morgan regarding seemingly similar predictive dialing technology. On that basis the court entered summary judgment in favor of the Defendant on the ATDS issue. Straightforward enough.

But then things get dicey. After recognizing that the use of a pre-recorded voice message is an independent basis to assert liability, the court appears to assume that messages played while the consumer was in the hold queue necessarily trigger TCPA liability. While there is little analysis on the subject the court accepts that the message was “artificial or pre-recorded” and appears satisfied that the mere use of this voice—during an otherwise live calls—triggers statutory coverage. Notably summary judgment was denied—but only because of a dispute as to the number of calls at issue.

A couple of additional points:

First, the Court found a question of fact as to whether Defendant’s servicing calls exceeded the scope of consent provided by the consumer when she provided her phone number in connection with a loan modification application. I haven’t seen that argument in a while—not since Bayview really— and this seems to be the first district court giving credence to the argument. Keep it in mind.

Second, the phone changed hands during the course of the calls at issue with the regular user of the phone transferring from wife to husband. There is a one liner in the opinion that is a little confusing and that also might make a big difference in the outcome. It reads: “When [Husband] became the primary user of the – 5620 number in March 2016, he became the – 5620 number’s subscriber.” It is unclear to me whether Husband, in fact, became the subscriber or whether the court is concluding—as a legal matter—that one who is the primary user of a phone is the “subscriber” for consent purposes. In any event, the Court concludes that after Husband became the user of the phone he had the power to revoke the consent as the “called party.” A disputed issue of fact thwarted summary judgment on the subject.

Happy weekend TCPAWorld.