All that is old is new again in TCPAworld.
In Asher v. Quicken Loans, Inc., Case No. 2:17-cv-1203, 2019 WL 131854 (D. Utah Jan. 8, 2019) ruled that allegations the Plaintiff encountered “a delay before Plaintiff is able to speak to anyone” were perfectly sufficient to allege ATDS usage. The Asher court reasoned that a call recipient is unlikely to have any information regarding the technical capacity of the device used to make calls absent discovery. So the very basic allegation of a pause before a live voice was tolerable. The Court also noted that calls made using a pre-recorded voice are separately viable to state a TCPA claim—which is hardly a surprise given that the statute is written in the disjunctive and numerous courts have already so found.
Unlike Broughton the Asher court did address the ATDS functionality issue determining that the capacity to dial numbers randomly or sequentially is the hallmark of ATDS usage, even if the specific number was not dialed that way. See Asher at *3 (“Thus, the TCPA may be violated when an unconsented call is made with equipment that possesses the capacity to generate and dial random or sequential numbers, regardless of whether the call was the result of random number generation.”) My goodness, so we’re back to the Satterfield days– the required functionalities are random or sequential number generation but the system does not have to dial the call at issue in that manner to trigger statutory coverage. That, of course, begs the question “capacity”–but let’s not go there.
Notably although Asher parts ways with the analysis in Marks it does not specifically address the case. (That’s permitted because Utah is in the 10th Circuit, not the 9th). And also because this case traveled through time from 2009 to reach us…