Armаndo Ybarra filed suit against DISH Network, L.L.C. for violations of the Telephone Consumer Protection Act. DISH called Ybarra’s cell phone 15 times to collect an unpaid balance. The district court entered partial summary judgment sustaining Ybarra’s claims regarding seven of the calls. Claims as to the other eight calls were later settled. On this appeal which solely relates to the seven calls, we conclude the district court erred in granting Ybarra’s motion for partial summary judgment. Summary judgment should have been granted to DISH on four of the seven calls. DISH has conceded liability as to the other three calls. We REVERSE and REMAND.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2012, a person who is not involved in this litigation entered into an agreement with DISH to receive satellite-television services. As part of the agreement, the DISH customer authorized DISH to contact him at a specific number, which we refer to as the “3475 number.” DISH could use the number “to recover any unpaid portion of [his] obligation,” if necessary. In May 2013, Armando Ybarra acquired the 3475 number after, presumably, the DISH customer relinquished it.
At some point, the DISH customer stopped paying for the television services. DISH began to call the 3475 number, which now belonged to Ybarra, to collect what the other person owed. DISH called the 3475 number 15 times between May 3, 2013, and October 29, 2013, using two different phone numbers. Seven calls were placed from a number ending in “8047” and eight calls from a number ending in “3474.” This appeal involves only the seven calls from DISH’s 8047 number, which were made using a “Cisco Dialer.” That device plays prerecorded messages when calls are met by a “рositive voice,” which may be either an actual human voice or a recorded voicemail greeting. The following summarizes the result of each call:
Call Number Date of Call Result
1 05/04/13 Positive Voice
2 05/18/13 Answering Machine
3 06/01/13 Answering Machine
4 06/15/13 Answering Machine
5 06/29/13 Data Error-No Value
6 07/01/13 Positive Voice
7 10/29/13 Positive Voice
Ybarra filed suit against DISH in December 2013, in the United States District Court for the Northern District of Texas, alleging that DISH viоlated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227. Specifically, Ybarra alleged that DISH violated the TCPA by calling his phone using an automatic telephone dialing system (“ATDS”) and/or by using *638 an artificial or prerecorded voice without Ybarra’s prior express consent. The parties filed cross-motions for summary judgment.
On November 14, 2014, the. district court: (1) granted Ybarra’s motion for summary judgment in part on the seven calls from DISH’s 8047 number, (2) denied Ybarra’s motion for summary judgment in part on the other eight calls, and (3) denied DISH’s motion in full. The district court reasoned that “[wjithout needing to determine whether the CISCO Dialer is an ATDS, Defendant has admitted to using a prerecorded voice in calls from the 8047 number. Because the TCPA prohibits making any call using a prerecorded voice, DISH concedes that the prerecоrded voice was present in the calls from the 8047 number regardless of whether Ybarra triggered it with a positive voice.” The district court determined that Ybarra was entitled to statutory damages of $500 per call, or $3,500 in total.
A few weeks after the district court’s November 14 ruling, the parties stipulated to dismissal of the claims related to the remaining eight calls. They jointly filed a settlement agreement and a stipulation of dismissal. In that document, they agreed to dismiss Ybarra’s eight remaining claims while expressly providing that the agreement did not affect DISH’s right to appeal from the partial summary judgment. The parties also filed a “Joint Proposed Judgment Entry.” On December 11, the court entered its own “Final Judgment,” which used slightly different language than in the parties’ proposal. DISH timely appealed that final judgment.
DISCUSSION
Ybarra argues that this court lacks jurisdiction because the final judgment, which implemented the parties’ agreement to settle the remainder of the case, did not reserve DISH’s right to appeal from the earlier partial summary judgment. We begin our review by analyzing jurisdiction, then turn to the validity of the district court’s entry of partial summary judgment.
I. Jurisdiction over DISH’s appeal
Four weeks after the district court granted in part Ybarra’s motion for summary judgment, the parties jointly filed two documents. One was a “Notice of Settlement and Stipulation of Dismissal with Prejudice as to Nоn-adjudicated Claims.” There, the parties referred to Federal Rule of Civil Procedure 41(a)(l)(A)(ii), which provides for a voluntary dismissal of a suit by the plaintiff. The notice also stated .that the parties “stipulate to the dismissal with prejudice of all claims for which summary judgmеnt was not granted.... This stipulation does not apply to or affect the adjudicated seven telephone calls ... as adjudicated in the Court’s Memorandum Opinion and Order (Doc. 64) and does not impact DISH’s right to appeal that Order, which issues are addressed in the separately filed joint proposed judgment entry.”
On the same day, the parties also submitted a proposed judgment containing complementary language. On appeal, Ybarra relies on the fact that DISH’s right to appeal was not exprеssly reserved, either in the parties’ proposed judgment or the district court’s slightly simpler final judgment. The judgment actually entered read: “The Court has entered its order granting in part Plaintiffs Motion for Summary Judgment, and the parties have stipulated to dismissal with prejudice of all сlaims for which summary judgment was not granted. It is therefore ORDERED, ADJUDGED, and DECREED that Plaintiffs Motion for Summary Judgment is GRANTED....”
*639
Ybarra contends that DISH waived its right to appeal by consenting to the entry of this final judgment. Ybarra relies on a decision from this court in which we reviewed a consent judgment that was entered just prior to trial.
Amstar Corp. v. S. Pac. Transp. Co. of Tex. & La.,
Our authority for the holding in
Amstar
was a case involving a dispute over attorney’s fees.
White & Yarborough v. Dailey,
Because of the absence of any reservation in the consent judgment,
White & Yarborough
was not on-point authority for the decision in
Amstar
that the right to appeal a previous district cоurt ruling cannot be effectively reserved in the final settlement of a case. In fact,
White & Yarborough
seemingly was just upholding the bargain — a party’s lawyer cannot unreservedly participate in the offering of an agreed judgment, then appeal with some previously unmentioned objection. Another circuit has identified
Amstar
as creating a rule unique to the Fifth Circuit that has been rejected by all other circuits to consider the point.
Downey v. State Farm Fire & Cas. Co.,
-In
Amstar,
the pretrial ruling, for which the right to aрpeal was unsuccessfully reserved, was on “the proper measure of damages resulting from damage done to a shipment of sugar” transported by the defendant from the plaintiffs factory.
We later characterized
Amstar
as barring appeals when there is a consent judgment, “even if the consent judgment contains an acknowledgment of one party’s intent to appeal,” but only when the appeal dealt with “an issue” of the consent judgment.
Strouse v. J. Kinson Cook, Inc.,
In the present case, there were two separate grouрs of phone calls, distinguished by the equipment and the phone number used to place the calls. As the district court’s rulings themselves show, there were distinctions among the claims that required different analysis. Settlement of one set of claims did not affect the analysis аpplicable to the other set of claims. Amstar only precludes the appeal of a claim directly covered by the consent judgment. Here, claims subject to the partial summary judgment are independent of the settled claims. The reservation оf a right to appeal was effective.
II. The district court’s entry of partial summary judgment
We review a grant of summary judgment de novo, applying the same standards as the district court.
E.E.O.C. v. LHC Grp., Inc.,
Section 227(b)(l)(A)(iii) of the TCPA makes it unlawful to “make any call ... using any automatic telephone dialing system [ATDS’] or an artificial or prerecorded voice ... to any- telephone number assigned to a ... cellular teleрhone service .... ” 47 U.S.C. § 227. The district court held that it did not need to determine whether DISH used an ATDS because DISH “admitted to using a prerecorded voice” and “the TCPA prohibits making any call using a prerecorded voice ... regardless of whether Ybarra triggered it with a positive voicе.” DISH concedes that it violated the TCPA by making calls 1, 6, and 7 using a prerecorded voice. Nonetheless, it contends that the district court erred in holding that DISH violated the TCPA in making calls 2 through 5. DISH proffers that none of these calls resulted in a prerecorded voice being used because no prerecorded voice was played as these calls were not met by a positive voice. 2
To be liable under the “artificial or prerecorded voice” section of the TCPA, we conclude that a defendant must make a call and an artificial or prerecorded voice must actually play. A couple of considerаtions compel this conclusion. First, under traditional rules of statutory interpretation, we “look at the plain meaning of the statutory language.”
United States v. Spurlin,
Second, the TCPA makes it unlawful to make any call using an “automatic telephone dialing
system.”
In contrast, it is not unlawful under the TCPA to make a call using an artificial or prerecorded voice
system.
Rather, what is precluded by the TCPA is making a call using “an artificial or prerecorded
voice.”
The omission of the word “system” must be given effect.
See Burnett Ranches, Ltd. v. United States,
We hold that making a call in which a prerecorded voice might, but does not, play is not a violation of the TCPA. Instead, the рrerecorded voice must “speak” during the call. A party who makes a call using an automatic telephone dialing system uses the
system
to make the call, regardless of whether the recipient answers, and thereby triggers TCPA liability. With a prerecorded voice, though, unless the recipient answers, an artificial or prerecorded voice is never
used.
Indeed, the several cases that Ybarra cites for the proposition that making a call with a prerecorded voice is sufficient for liability are actually cases involving the use of an ATDS.
See, e.g., Castro v. Green Tree Servicing LLC,
DISH conceded that phone calls number 1, 6, and 7 created TCPA liability. Its motion for summary judgment stated that Ybarra was entitled to $500 per call for those three calls, but it also argued the claims for calls 2 through 5 should be dismissed. That motion should have been granted.
We REVERSE the grant of Ybarra’s motion for partial summary judgment. We REMAN'D to the district court to enter judgment for Ybarra in the amount of $1,500.
Notes
. Professors Wright and Miller concluded that our decision in Amstar was wrong.
If the parties [in Amstar ] in fact both agreed that an appeal would remain open tо test the measure of damages, the court’s decision is wrong. Justice Blackmun dissented from denial of certiorari, arguing that the plaintiff should “not be foreclosed by a strict concept of consent and acceptance in the face of faсts that the asserted consent was specifically limited and that [plaintiff] consistently and persistently disclaimed full settlement of the lawsuit.” [Amstar Corp. v. S. Pac. Transp. Co. of Tex. & La.,449 U.S. 924 , 927,101 S.Ct. 327 ,66 L.Ed.2d 153 (1980) (Blackmun, J., dissenting from denial of grant of certiorari) ].
15A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3902 n. 63 (2d ed.1992).
. Ybarra alternatively argues that DISH made the calls using an ATDS. If that is so, then DISH’s possible violations of the TCPA would not turn on the “prerecorded voice’’ analysis. This claim was not explicitly resolved by the district court. Instead, the court determined that the CISCO-dialer manual, which was the only purported factual support for Ybarra’s argument, was unauthenticated and inadmissible hearsay. Because Ybarra has not cross-appealed the district court's ruling excluding the manual, the exclusion stands.
Art Midwest Inc. v. Atl. Ltd. P'ship XII,