Earlier this week the judge in Holly Freyja v. Dun & Bradstreet, Inc. granted the defendant’s motion for summary judgment. The case occurred in the United States District Court, Central District of California.
The Plaintiff alleged that the Defendant violated the Telephone Consumer Protection Act (TCPA) by calling her using an automatic telephone dialing system (ATDS) and by calling a phone number on the national do-not-call registry for the purposes of a telephone solicitation.
D&B moved for summary judgment, arguing that the phone used to call Freyja was not an ATDS and the purpose of the call was not solicitation. The Plaintiff was not able to disprove these claims.
The facts in this case demonstrated that the Plaintiff was not called from an ATDS. Convergys was the vendor that made the calls on behalf of D&B. The agent at Convergys who made the calls testified that Freyja’s number was dialed manually using an Avaya 4610 desktop phone. Convergys’s Director of Network Services testified that an Avaya 4610 phone cannot, itself, be used as an autodialer. Plaintiff offered opposition; however that opposition included no relevant analysis to refute the testimony of the Convergys employees, who had direct knowledge of the facts.
As to purpose of the call, the Defendant showed evidence that the reason for the call was to acquire information about the commercial services offered by the Plaintiff, not to market or sell anything to her. The only evidence offered by the Plaintiff is that she believed the Defendant “could have possibly” been trying to sell her something. There was no evidence that any marketing occurred during the call.
The TCPA bans calls to sell property, goods, or services, not calls to acquire information. Therefore the motion for summary judgment was granted.