Armando Ybarra v. Dish Network, L.L.C.
807 F.3d 635
5th Cir.2015Background
- Ybarra acquired a cellphone number previously authorized by a DISH customer for debt-collection contact; DISH placed 15 calls to that number between May and October 2013. Seven calls at issue were made from DISH’s 8047 number using a Cisco dialer that plays prerecorded messages when a “positive voice” is detected.
- The district court granted partial summary judgment for Ybarra as to the seven 8047 calls, reasoning DISH had admitted using a prerecorded voice and that the TCPA prohibits calls using a prerecorded voice regardless of whether it actually played.
- DISH conceded liability for three of the seven calls (calls 1, 6, and 7) but disputed liability for four calls (calls 2–5), arguing no prerecorded voice played because those calls were not met by a positive voice.
- The parties settled the other eight calls (from a different DISH number/equipment) and jointly filed dismissal papers; the district court entered a final judgment that did not explicitly reserve DISH’s right to appeal the partial summary judgment.
- The Fifth Circuit held it had jurisdiction to hear DISH’s appeal (distinguishing Amstar), and reviewed de novo whether the TCPA requires that a prerecorded or artificial voice actually play during a call to trigger liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a call violates 47 U.S.C. § 227(b)(1)(A)(iii) simply because a prerecorded voice system was used to place the call, even if the prerecorded voice did not actually play | Ybarra: use of a prerecorded-voice system in placing the call is sufficient for TCPA liability | DISH: prerecorded voice must actually play ("speak") during the call; mere standby availability is insufficient | Held for DISH as to calls 2–5: prerecorded voice must actually play during the call; mere potential to play does not violate TCPA |
| Whether DISH waived its right to appeal by consenting to final judgment that dismissed the remaining claims without expressly reserving appeal | Ybarra: consented final judgment waived DISH’s appeal rights (relies on Amstar) | DISH: settlement covered separate group of calls; reservation in dismissal filings preserved appeal; Amstar inapplicable | Held for DISH: appeal preserved because settled claims were independent of adjudicated calls |
| Whether summary judgment record showed DISH used an ATDS for the 8047 calls | Ybarra: alternatively argued CISCO-dialer functioned as ATDS | DISH: district court excluded the CISCO manual as hearsay; no admissible evidence of ATDS | Held for DISH on ATDS point: exclusion stands and no evidence of ATDS was before the court |
| Remedy amount following reversal | Ybarra: $500 per call for seven calls | DISH: conceded three calls; contested four calls | Court reversed partial summary judgment as to four calls and remanded to enter judgment for Ybarra for the three conceded calls ($1,500 total) |
Key Cases Cited
- Amstar Corp. v. S. Pac. Transp. Co. of Tex. & La., 607 F.2d 1100 (5th Cir. 1979) (consent judgment can preclude appeal of earlier ruling when the consent judgment resolves the same claim)
- White & Yarborough v. Dailey, 228 F.2d 836 (5th Cir. 1955) (a party who freely consents to an agreed judgment cannot later appeal parts of it)
- Strouse v. J. Kinson Cook, Inc., 634 F.2d 883 (5th Cir. 1981) (characterizing Amstar’s scope as limited to appeals of issues covered by a consent judgment)
- United States v. Spurlin, 664 F.3d 954 (5th Cir. 2011) (use of plain statutory language in interpretation)
- Burnett Ranches, Ltd. v. United States, 753 F.3d 143 (5th Cir. 2014) (textualist emphasis on omitted words and statutory drafting)
- Art Midwest Inc. v. Atlantic Ltd. P’ship XII, 742 F.3d 206 (5th Cir. 2014) (preservation of evidentiary rulings when not cross-appealed)