This Franklin case is such an interesting little wonder.
You’ll recall that Navient is being sued by a pro per for allegedly using an ATDS to call him without consent. The calls at issue were made to collect on government-backed debt, and the court held that the conduct might be illegal–although the statute plainly permitted it at the time. I have called this result “madness“–because that is precisely what it is. (Notably another court has rejected the application of the TCPA to this precise category of calls made by this precise Defendant because TCPAWorld.)
But this piece isn’t about the government-backed debt exemption, its about the use of an ATDS.
As Navient’s counsel explained to me, it moved for summary judgment earlier in the case arguing it did not use an ATDS. Yet the Court granted summary judgment on an alternative argument–that the government-backed debt exemption allowed the calls. While a different judge later reversed that portion of the ruling, the ATDS issue was never ruled upon.
Well in Franklin v. Navient, Inc., No. 1:17-cv-1640-SB, 2021 U.S. Dist. LEXIS 129023 (D. De. July 12, 2021) the Court finally addressed the ATDS issue and gave Navient the ruling it was looking for. The Court determined that the Plaintiff had introduced no evidence of ATDS usage, other than claims that calls had been dropped at times. But, as the Court correctly points out, the fact that Navient allegedly abandoned calls may not make for a very good customer experience, but it does not prove autodialer usage.
The Franklin court does not address Facebook or otherwise move the needle on FN7, etc. but is nice to see a clean ruling that abandonment is not evidence of autodialer usage.
One interesting note, the Court–again, different judge–had previously ruled that a dispute of fact existed with respect to how some calls were placed. Well the Court in yesterday’s order decided that there was no dispute of fact after all, and granted summary judgment in favor of Navient on those calls as well. You don’t see that very often.
Also, keep in mind, Navient is still stuck in the case because some of its calls were prerecorded. Those calls remain at issue–ATDS calls and prerecorded calls are separately actionable.
We’ll keep an eye on this.