United States District Court, W.D. Oklahoma
ROBERT H. BRAVER, for himself and all individuals similarly situated, Plaintiff,
NORTHSTAR ALARM SERVICES, LLC, et al., Defendants.
STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE.
action, Robert H. Braver alleges, for himself and on behalf
of the class the court has certified under Rule 23, that
Yodel Technologies, LLC, initiated telemarketing calls on
behalf of NorthStar Alarm Services, LLC, in a manner which
violated the Telephone Consumer Protection Act (TCPA) and
regulations implemented thereunder.
appears on his own behalf and on behalf of the class with
respect to count one, and appears on his own behalf with
respect to count three. Yodel is a company which allegedly
provides telemarketing services to its clients. Defendants
describe Yodel's business as “qualifying
leads” (prospects) for its clients.NorthStar is (or
was) one of Yodel's clients. NorthStar provides
residential security and home automation systems to
for summary judgment are before the court.
moves for summary judgment on his own behalf and on behalf of
the class. He seeks summary judgment against both
defendants “for their violations of the
TCPA.” Braver's motion, however, presents no
developed argument with respect to count three. NorthStar
filed a response brief. Braver filed a reply
moves for summary judgment on counts one and
three. Braver has responded and NorthStar has
moves to join NorthStar's motion for summary judgment.
Doc. no. 123. No. party responded to Yodel's motion,
which is broadly construed as a motion seeking leave to join
in all of NorthStar's motion papers currently before the
court, specifically, NorthStar's motion for summary
judgment, NorthStar's reply brief, and NorthStar's
brief in response to Braver's motion for summary
judgment. The court construes Yodel's motion in this
manner because the arguments made by NorthStar in all of
these papers overlap and because it appears this was
Yodel's intent. The court is confident, for example, that
Yodel did not intend to confess Braver's motion for
summary judgment by failing to respond to it.
reasons stated in this order, Braver's motion for summary
judgment will be granted on count one and otherwise denied.
NorthStar's motion for summary judgment, joined in by
Yodel, will be granted on count three and otherwise denied.
court previously dismissed any direct liability claims
alleged against NorthStar, ruling that any potential
liability on NorthStar's part must be based on its
alleged vicarious liability for Yodel's
acts. At this stage, Braver argues that Yodel
has direct liability on both of the remaining counts and that
NorthStar has vicarious liability on those counts.
one alleges that defendants violated the TCPA, specifically
47 U.S.C. § 227(b)(1)(B), and the Federal Communications
Commission's implementing regulation at 47 C.F.R. §
227(b)(1)(B) provides that it shall be unlawful for any
person within the United States:
to initiate any telephone call to any residential telephone
line using an artificial or prerecorded voice to deliver a
message without the prior express consent of the called
47 C.F.R. § 64.1200(a)(3) limits the application of
§227(b)(1)(B) to telemarketing calls and requires prior
express written consent of the called party, providing as
No person or entity may…[i]nitiate any telephone call
to any residential line using an artificial or prerecorded
voice to deliver a message without the prior express written
consent of the called party, unless the call…is not
made for a commercial purpose; [or] [i]s made for a
commercial purpose but does not include or introduce an
advertisement or constitute telemarketing….
47 C.F.R. § 64.1200(a)(3)(ii), (iii).
contends that defendants violated these provisions by making
telemarketing calls on the residential phone lines of Braver
and the class, using soundboard technology to deliver
prerecorded messages to persons with whom defendants had no
prior relationship and from whom prior consent had not been
three alleges that defendants violated 47 C.F.R. §
64.1200(d), which provides as follows.
No person or entity shall initiate any call for telemarketing
purposes to a residential telephone subscriber unless such
person or entity has instituted procedures for maintaining a
list of persons who request not to receive telemarketing
calls made by or on behalf of that person or entity. The
procedures instituted must meet the following minimum
(1) Written policy. Persons or entities making calls for
telemarketing purposes must have a written policy, available
upon demand, for maintaining a do-not-call list. …
(4) Identification of sellers and telemarketers. A person or
entity making a call for telemarketing purposes must provide
the called party with the name of the individual caller, the
name of the person or entity on whose behalf the call is
being made, and a telephone number or address at which the
person or entity may be contacted. The telephone number
provided may not be a 900 number or any other number for
which charges exceed local or long distance transmission
contends that defendants violated this regulation in two
ways: by initiating calls without first having implemented an
effective written policy meeting the regulatory standards,
and by failing to provide the called party (Braver) with the
required identifying information.
Rule 56, Fed. R. Civ. P., summary judgment shall be granted
if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). A genuine issue of material fact exists when
“there is sufficient evidence favoring the non-moving
party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). In determining whether a genuine issue of a material
fact exists, the evidence is to be taken in the light most
favorable to the non-moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970). All reasonable
inferences to be drawn from the undisputed facts are to be
determined in a light most favorable to the non-movant.
United States v. Agri Services, Inc., 81 F.3d 1002,
1005 (10th Cir. 1996). Once the moving party has
met its burden, the opposing party must come forward with
specific evidence, not mere allegations or denials,
demonstrating that there is a genuine issue for trial.
Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.
1983). A scintilla of evidence is not sufficient to defeat a
motion for summary judgment; there must be sufficient
evidence on which a jury could reasonably find for the
non-moving party. Manders v. State of Oklahoma ex rel.
Dept. of Mental Health, 875 F.2d 263, 265 (10th Cir.
1989), superseded by statute on different issue, quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251
set forth in the statement of the material facts of the
movant may be deemed admitted for the purpose of summary
judgment unless specifically controverted by the nonmovant
using the procedures set forth in the court's local
rules. LCvR56.1(e). Those procedures require the nonmovant to
cite evidentiary material in support of its position.
Id. Accordingly, this order sometimes characterizes
a fact as undisputed although the nonmovant purports to
dispute it. The court only does so if it has found, based on
its review of the record, that the nonmovant did not carry
its burden to raise a genuine dispute.
is no dispute about the following matters. (Additional facts
are stated elsewhere in this order.)
automated predictive dialer initiated the calls in question
in this action. A computer dialed the telephone number,
detected whether it was answered by a potential customer and,
if so, transferred the connected call to a soundboard agent
who was trained to play prerecorded wav files (audio files)
to deliver messages to the called party by pressing
soundboard software (referred to by Yodel as “the Yodel
Dialer”)required Yodel's soundboard agents,
located in a call center in India,  to follow a script which
instructed them to press buttons in a certain order thereby
delivering prerecorded audio clips to the called
answering the initial call, the first thing a called person
(i.e. a lead or a prospect) heard was a prerecorded
voice stating: “Hello this is [Amy ],  I a m s ec u
ri t y advisor, can you hear me okay?” During the
course of the telemarketing campaign, there was some
variation in how a lead was provided to NorthStar (some leads
were handed off as a “warm transfer, ” meaning
with the called person still on the line, and some leads were
called back by NorthStar), but every initial call began with
the soundboard agent (Yodel's agent) playing the first
On October 15, 2018, the court certified the following class
Class: All persons in the Red Dot Data marketing
list for whom Yodel's records reflect a telephone call
regarding Northstar's home security systems that lasted
more than 30 seconds, that was handled by an agent who
applied status code 20 or 50 to the call, and that resulted
in the normal clearing disposition.
All persons in the Red Dot Data marketing list for whom
Yodel's records reflect a telephone call regarding
Northstar's home security systems that lasted more than
30 seconds, that was handled by an agent who applied status
code 50 to the call, and that resulted in the normal clearing
Excluded from the class are:
Any persons whose contact information is associated with
either an IP address or website URL in the Red Dot Data
expert analyzed call records and identified 239, 630 persons
who meet the class definition and 47, 398 persons who meet
the subclass definition. In doing so, he removed any call
records where there was any possibility that no prerecorded
message played. As a result of this approach, the total set
of 78 million call records was narrowed to 252, 765 calls at
issue for the class.
August 26, 2016, Braver received a telephone call on his
residential phone number. The call used the soundboard
system. In that call, the soundboard agent pressed buttons
which delivered prerecorded voice messages and thus could not
answer Mr. Braver's basic questions about who was calling
or why Braver's telephone number had been dialed. Prior
to receiving the call, Braver had no relationship with
NorthStar. Like the other class members, Braver is in the Red
Dot Data marketing list which Red Dot Data sold to Yodel.
Matters Expressly Conceded by
Defendants concede Yodel initiated the calls to plaintiff and
to the class.
Defendants concede Yodel did not obtain consent from the
called parties prior to initiating calls to plaintiff and the
Defendants concede that the calls constituted telemarketing
under the TCPA.
Defendants concede that at least some of the telephone
numbers called were residential numbers.
these concessions, defendants raise just two issues with
respect to count one. Defendants argue that the calls
initiated by Yodel to generate leads as part of the NorthStar
telemarketing campaign are not calls which “deliver a
message” within the meaning of §227(b)(1)(B). This
issue is addressed in Part A, below. Defendants also argue
that NorthStar is not vicariously liable for Yodel's
material acts. This issue is addressed in Part B, below.
Calls Delivered “a Message” Within the
Meaning of §227(b)(1)(B).
previously stated, §227(b)(1)(B) provides that it shall
to initiate any [telemarketing] telephone call to any
residential telephone line using an artificial or prerecorded
voice to deliver a message without the prior express consent
of the called party.
contend that §227(b)(1)(B)'s use of the singular in
the phrase “to deliver a message, ”
shows the statute does not regulate, and was not intended to
regulate, interactive exchanges of information which
defendants contend do not deliver “a message” but
instead deliver messages - plural. Defendants argue:
“Put simply: while soundboard technology may use audio
clips containing ‘artificial or prerecorded
voices,' those clips do not ‘deliver a
message.' Thus, these calls do not contravene the
TCPA's prohibition on using prerecorded voices to deliver
U.S.C. § 1 provides that “In determining the
meaning of any Act of Congress, unless the context indicates
otherwise…words importing the singular include and
apply to several persons, parties, or
things….” Nothing about the context of
§227(b)(1)(B) suggests a different result
argue that if Congress had intended § 227(b)(1)(B) to
apply to calls which delivered multiple messages, Congress
knew how to so provide. Defendants cite restrictions against
making “any call…using any automatic telephone
dialing system or an artificial or prerecorded voice”
(to a patient room of a hospital) per 47 U.S.C.
§227(b)(1)(A)(ii). Defendants also cite the TCPA's
creation of a private right of action under §227(c)(5)
for persons who receive “more than one telephone call
within any 12-month period by or on behalf of the same
entity” in violation of regulations prescribed under
that subsection. These arguments are unpersuasive given the
plain language and meaning of § 227(b)(1)(B), together
with the principle of statutory construction embodied in 1
U.S.C. § 1.
court also rejects defendants' argument that the
statute's use of the singular shows it was not intended
to regulate a soundboard system that involves human
interaction. Defendants argue that phrases in the statute
such as “initiate any telephone call” and
“deliver a message” imply no human interaction in
the message- delivery system. As further support,
defendants' response brief cites In re TCPA of
1991, 7 FCC Red 2736 (June 25, 1992), which states:
“The legislative history of the TCPA also reflects the
premise that auto dialer generated calls are more intrusive
to the privacy concerns of the called party than live
solicitations.” Defendants also cite legislative
history in their own moving brief.
court notes the statements of congressional purpose relied on
by defendants. This legislative history, however, does not
limit the plain language of §227(b)(1)(B), which says
nothing about any requirement that there be no human
interaction for §227(b)(1)(B) to apply. Even more
fundamentally, the language of §227(b)(1)(B) is clear,
and there is no reason to resort to legislative history to
determine its meaning. See, Edwards v.
Valdez, 789 F.2d 1477, 1481 (10th Cir. 1986)
(“When the meaning of a statute is clear, it is both
unnecessary and improper to resort to legislative history to
divine congressional intent”).
argue that their interpretation of § 227(b)(1)(B) avoids
conflict with other provisions of the TCPA. For example, they
note that 47 U.S.C. §227(d)(3)(A) requires callers to
include certain identifying information at the beginning of
all prerecorded messages. They argue that if soundboard
technology is considered to be the delivery of a prerecorded
message, then under § 227(d)(3)(A), call recipients
would be required to listen to the same identification
information before each and every audio clip played during a
call, an obviously absurd result. The court rejects this
argument as a basis for construing § 227(b)(1)(B).
Congress is entitled to some flexibility of language so long
at its meaning is clear.
other arguments are also unpersuasive. Defendants argue that
their interpretation of §227(b)(1)(B) avoids a conflict
with the Federal Trade Commission's
Telemarketing Sales Rule's call-abandonment provisions.
Braver responds by arguing that defendants misstate the rule.
Regardless, this court is not required to ignore the plain
meaning of §227(b)(1)(B) to avoid bumping up against an
FTC rule not in dispute in this action. Defendants argue that
if §277(b)(1)(B) is construed to apply to calls that
involve human interaction and prerecorded messages, then the
statute will apply whenever a prerecorded message is used in
an otherwise live call so that common prerecorded messages
(such as “this call may be monitored, ” hold
music or hold messages) will violate § 227(b)(1)(B) when
played during these otherwise live calls. Section
227(b)(1)(B), however, applies only to telemarketing calls, a
fact which largely answers this argument. Similarly,
defendants argue that if §227(b)(1)(B) is construed as
Braver contends, the statute will preclude telemarketing
calls placed by a disabled person who uses a voice generator
as an “artificial voice.” This action involves a
“prerecorded voice, ” not an “artificial
voice.” Moreover, the bigger point with respect to all
of these types of arguments is that they are too remote from
the facts of this case to be persuasive.
careful consideration, the court rejects defendants'
argument that the calls initiated by Yodel did not deliver a
message within the meaning of
§227(b)(1)(B). This conclusion -- together with the
matters which have been expressly conceded by the defendants
(Yodel initiated the calls to plaintiff and the class,
consent was not obtained, the calls constituted telemarketing
calls, and at least some of the telephone numbers called were
residential numbers) -- means that liability has been
established on the part of Yodel with respect to count one.
There is no genuine issue with respect to the fact that Yodel
initiated telephone calls to residential telephone lines
using a prerecorded voice to deliver a message without the
prior express consent of the called party. With respect to
the claims alleged against Yodel in count one, Braver and the
class are entitled to summary judgment in their favor.
potential liability on count one depends on vicarious
liability, addressed next.
NorthStar Is Vicariously ...