Pauses, Clicks and Dead Air Do Not a TCPA Claim Make

In a nonprecedential opinion, the Seventh Circuit recently reminded TCPA plaintiffs that they carry the burden of proof as to whether calls were made with an automated telephone dialing system (“ATDS”).  The TCPA restricts the use of ATDS equipment when calling cellular telephones.  Calls cannot be made with an ATDS without the prior express consent of the consumer.  See generally 47 U.S.C. 227.  In Norman v. AllianceOne Receivables Management, Inc., No. 15-1780 (7^th Cir. Dec. 22, 2015), the plaintiff alleged seven calls were made to his cell phone without his prior express consent.  The plaintiff contended the calls were made with an ATDS because he heard a “pause,” “clicking,” and “dead air”.  The plaintiff went on to cite as further support of the nature of the calls, a guide published by the Federal Trade Commission which indicates that autodialed calls often result in hang ups and dead air.  By contrast, AllianceOne provided the court with an affidavit by its custodian of records which included an authenticated log of all calls made to the plaintiff.  The affidavit additionally indicated the calls were manually made, that the system used to make the calls did not have the capacity to make automated calls, and that the system required the collector enter all phone numbers by hand. 

In considering AllianceOne’s motion for summary judgment, the district court determined that the affidavit brought forward by AllianceOne was admissible and properly laid the foundation for the admission of the telephone log as a business record.  By contrast, the court determined that the plaintiff’s evidence of pauses, clicks and dead air was not persuasive and moreover, the FTC guide relied upon by the plaintiff was inadmissible hearsay. On appeal, the Seventh Circuit affirmed, holding that: (a) call logs are admissible business records when properly authenticated; and (b) the FTC guide cited to by the plaintiff was properly excluded as hearsay.  The case, while not ground breaking, should serve as a reminder to plaintiffs, and a comfort to defendants, that plaintiffs must bring forth competent evidence to support the use of an ATDS in order to prevail on their TCPA claims.