Roark v. Credit One Bank, N.A.

Background

Credit One Bank’s customer, identified as “R.B.,” opened a line of credit in 2013 and gave the bank a phone number, agreeing to receive calls there for reasons including collections. The number was reassigned to Stewart L. Roark in May 2015. R.B. did not tell Credit One about the change, and the bank did not know the number had been reassigned.

From September through December 2015, Credit One and its vendors attempted to contact R.B. through Roark’s number 140 times. The bank did not leave a message on 136 calls. On four calls, it left prerecorded voicemails asking the recipient to call Credit One and providing the bank’s phone number and hours. Roark also called Credit One four times but hung up when connected to a representative. He later told a representative that he was not a Credit One customer. Credit One then placed the number on its block/do-not-call list and did not call Roark again.

Roark sued under the Telephone Consumer Protection Act, alleging that Credit One used automatically dialed calls to contact his cellphone without permission. He also sought increased damages based on an alleged knowing or willful violation. The parties filed cross-motions for summary judgment, asking the court to decide whether Credit One’s phone systems violated the Act.

Automatic-Dialing System

The Act prohibits using an automatic telephone dialing system to call or message a cellphone without the called person’s express permission. The Act defines such a system as equipment with the capacity to store or produce telephone numbers using a random or sequential number generator and to dial those numbers.

The court relied on the D.C. Circuit’s decision in ACA International v. FCC, which rejected the Federal Communications Commission’s broad interpretation of an autodialer’s “capacity” and concluded that the relevant system must generate random or sequential numbers and then dial them. The court also found decisions from the Second and Third Circuits more persuasive than the Ninth Circuit decision on which Roark relied.

The court accepted Credit One’s evidence that its vendors’ predictive dialing systems did not have the present capability to generate random or sequential numbers to dial. Although the systems were predictive dialers, that fact alone did not make them automatic telephone dialing systems under the court’s interpretation of the Act. Roark offered little evidence about the systems and did not argue that they had the present or future ability to generate numbers for calling. The court therefore found no genuine dispute of material fact on this issue.

Prerecorded Voicemails

The Act also prohibits using an artificial or prerecorded voice to call a cellphone without the called party’s prior express consent. After ACA International invalidated the Federal Communications Commission’s one-call protection for reassigned numbers and set aside its treatment of reassigned numbers, the court considered whether Credit One reasonably relied on the prior number holder’s consent.

Credit One had R.B.’s express consent to call the number he provided, including with prerecorded messages. The bank had no reason to know that the number had been reassigned because it received no notice from Roark and the caller identification information still identified R.B. The court held that Credit One reasonably relied on R.B.’s prior consent and that summary judgment was proper on the voicemail issue.

Treble Damages and Disposition

Roark sought up to $1,500 per call for a knowing or willful violation. Because the court found that Credit One did not violate the Act, it held that the treble-damages issue was moot.

Judge Paul A. Magnuson ordered that Roark’s motion for summary judgment was DENIED and Credit One’s motion for summary judgment was GRANTED. The court directed that judgment be entered accordingly.