Posted on October 21, 2014
In Moore v. DISH, plaintiff alleged that defendant violated the TCPA by calling his cell phone with an ATDS attempting to contact a third party. The parties filed cross motions for summary judgment, which were denied in part and granted in part. The court first concluded that plaintiff, who had obtained the cell phone as part of the federal Lifeline program and was not charged for the calls, still could state a claim under the TCPA because there was no requirement that he be charged for the calls. The court also found that plaintiff, who was not the intended recipient of the calls, had standing under the TCPA because he was the subscriber of the phone, and that the intended recipient of the calls was not relevant. The court found plaintiff had standing for even those calls that were received at a time that plaintiff was not carrying the cell phone. Finally, the court found that a predictive dialer is equipment covered by the TCPA, and that the dialer used by defendant was a predictive dialer, rejecting defendant’s argument that the dialing equipment was not an ATDS because there was human involvement in the creation of the dialing list, concluding that the equipment met the definition of a predictive dialer because it dialed telephone numbers from a stored list without human intervention.