Ybarra v. Dish Network, L.L.C., No. 14-11316 (5th Cir. 2015)Annotate this Case
Plaintiff filed suit against DISH for violations of the Telephone Consumer Protection Act, 47 U.S.C. 227, because DISH called plaintiff's cell phone 15 times to collect an unpaid balance. The district court granted partial summary judgment sustaining plaintiff's claims in regards to seven of the calls. The remaining calls were later settled. Concluding that the court has jurisdiction over the appeal, the court held that making a call in which a prerecorded voice might, but does not, play is not a violation of the TCPA. Instead, the prerecorded voice must “speak” during the call. DISH proferred that calls 2 through 5 did not result in a prerecorded voice being used because no prerecorded voice was played as these calls were not met by a positive voice. DISH conceded that phone calls number 1, 6, and 7 created TCPA liability. The court concluded that the district court erred in granting partial summary judgment to plaintiff for the seven calls where summary judgment should be granted to DISH on four of the seven calls and DISH conceded liability as to the remaining three calls.