Ybarra v. DISH Network: A Prerecorded Voice Has to Actually Play

What happened

In 2012 a DISH customer gave DISH a cell number and agreed it could call him there about unpaid bills. By May 2013, Armando Ybarra had that number. The customer stopped paying, and DISH kept calling the number, now Ybarra's, 15 times between May and October 2013.

Seven of those calls came from a number ending in 8047 and went through a "Cisco Dialer." That system plays a prerecorded message when it detects a "positive voice," meaning either a live person or a voicemail greeting. DISH's call records showed three calls met by a positive voice, three marked "Answering Machine," and one "Data Error."

Ybarra sued in the Northern District of Texas. The district court granted him summary judgment on all seven 8047 calls at $500 each, reasoning that DISH admitted using a prerecorded voice on that line. The parties settled the other eight calls, and DISH appealed.

The appeal survived a settlement

Ybarra argued DISH gave up its appeal by agreeing to the final judgment. The Fifth Circuit has an unusual precedent, Amstar, barring appeals from consent judgments. But the court read Amstar narrowly: it covers only claims resolved by the consent judgment. Here the two groups of calls used different equipment and numbers, settling one group didn't affect the other, and DISH's reservation of its appeal rights worked.

What the court held

Judge Southwick wrote for the panel. DISH conceded liability for calls 1, 6 and 7. The fight was over calls 2 through 5, where DISH said no prerecorded voice played.

The court sided with DISH on two grounds:

• Plain meaning. The statute bars a call "using" an artificial or prerecorded voice. "Using" means the voice actually spoke. A message on standby isn't used.
• No "system." The autodialer ban covers calls made with an automatic telephone dialing "system," which you're using the moment you dial, answered or not. The prerecorded voice provision says "voice," not "voice system," and that difference counts.

Ybarra also argued the dialer was an autodialer, but his only evidence was a manual the district court excluded, and he didn't cross-appeal that ruling.

The court reversed and ordered judgment for Ybarra of $1,500 for the three conceded calls.

Why this matters

For prerecorded voice claims, the count is calls where the message actually played, not every dial. The case is also a reminder of the reassigned number problem: DISH had consent from its customer, not from the new owner of the number.

Practical points

1. Keep dialer logs showing whether a message actually played on each call.
2. Autodialer claims work differently, since using the system to dial can be enough.
3. Check numbers for reassignment before collection calls.
4. If you settle part of a case, spell out your appeal rights clearly.

Read the Fifth Circuit's opinion in Ybarra v. DISH Network.