Morgan & Morgan’s Desperate List of ATDS Cases

IMG_5241

WARNING: This page contains advocacy positions by Morgan & Morgan consumer protection attorneys. The positions on this page are not supported or advocated by TCPAWorld.com–in fact they’re erroneous in many respects– and we do not recommend you rely upon this content. Nonetheless we provide the list so you can understand the positions taken by different firms and how minds can differ on the import of a decision.

2003 and 2008 FCC orders Post ACA

  1. Marshall v. CBE Grp., Inc., Case No. 2:16-cv-02046-GMN, 2018 WL 1567852 (D. Nev. Mar. 30, 2018): The District Court examined the D.C. Circuit’s decision in ACA Int’l and found that the Court set aside the 2015 FCC’s Order interpretation of an ATDS.  Id., at *4.  As such, the District Court elected not to stray from the statute’s language and ultimately concluded that the Defendant’s dialing system did not qualify as an ATDS.  Id., at *5.  However, the Marshall court did not squarely address whether the 2003 FCC Order remained binding.  , at *7.  Instead, it reasoned that, even if it remained binding, the plaintiff would still lose because “the overwhelming weight of authority” before ACA Int’l found “that ‘point-and-click’ dialing systems, paired with a cloud-based pass-through service, do not constitute an ATDS as a matter of law in light of clicker’s human intervention” at the time of dialing.  Id., at *7 citing, inter alia, Strauss v. The CBE Grp., Inc., 173 F. Supp. 3d 1302, 1310-11 (S.D. Fla. 2016).  The Defendant in Marshall utilized a Manual Clicker Application, “which is a web-based software by which a CBE agent clicks a bull’s-eye on a computer screen and a call is placed.”  Id., at *5.
  2. France v. DiTech Fin., LLC, No. 8167CV3938T24MAP, 2018 WL 1695405, at *8 (M.D. Fla., Apr. 6, 2018): The Defendant moved to dismiss the Plaintiff’s claim in part because Plaintiff allegedly failed to set forth “sufficient facts to support their contention that Defendant used an ATDS” and cited to the statutory language regarding random or sequential number generation.  , at *7-8.  However, the District Court was not persuaded and rejected the Defendant’s argument on this issue noting that “Plaintiffs’ allegations are consistent with the use of a predictive dialer.” Id., at *8.  As such, it is clear from this finding that the District Court continues to hold that a predictive dialer remained an ATDS  following ACA Int’l. Plaintiffs respond that the FCC has interpreted the statutory definition of an ATDS to include predictive dialers, which make calls from a list of numbers fed into the device. See Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1114 (11th Cir. 2014). Defendant argues that given that the phone calls were intentionally placed to communicate with Plaintiffs specifically, an inference can be drawn that the phone calls were not made by an ATDS, which calls phone numbers using a random or sequential number generator. Plaintiffs’ allegations are consistent with the use of a predictive dialer, and therefore, the Court rejects Defendant’s argument on this issue.
  3. Reyes v. BCA Fin. Servs., Inc., No.: 1:16-cv-24077-JG, 2018 U.S. Dist. LEXIS 80690 (S.D. Fla. May 14, 2018): In its Order on Summary Judgment, the District Court specifically held that “the prior FCC Orders are still binding” and that the Noble predictive dialer is an ATDS, regardless of how the numbers it dials are loaded into the dialing system, because it automatically dials these telephone numbers without human intervention at the time of dialing.  , at *23-25.  The Court went on to observe that ACA Int’l does not endorse one interpretation other the other and, absent an express rejection of the prior FCC Orders, the Court cannot deviate from them and impose its own interpretation of the TCPA.  The court notes “the FCC has consistently held that predictive dialers constitute ATDSs, their basic function being that they can dial persons without human intervention regardless of whether called numbers are generated randomly or sequentially or from a set list. Part of the concession of a predictive dialer by Defendant is there is no human intervention at the time of dialing.” (emphasis added).  Id., at *10.  Notably, the Noble predictive dialer is the same dialing system utilized by Respondent for all the actionable calls placed to Claimant’s cell phone without his consent.
  4. Herrick v. GoDaddy.com LLC, No. CV-16-00254-PHX-DJH, 2018 WL 2229131 (D. Ariz. May 14, 2018): The Defendant moved for summary judgment arguing that it’s dialing system was not an ATDS “as that term is defined by the TCPA and subsequent FCC regulations.”  Id., at *3. The District Court noted that the FCC seemed to confirm an even more expansive definition in its 2015 Order.  Id., at *7.  Ultimately, the District Court ruled in Defendant’s favor.  In reaching its decision, the District Court went a step further and examined the Defendant’s human intervention at the time the text message was sent to the intended recipient.  The District Court noted that an agent would have to take numerous steps, including drafting the message, designating the phone numbers to receive the message, and clicking “send”.
  5. Swaney v. Regions Bank, No.: 2:13-cv-00544-JHE, 2015 U.S. Dist. LEXIS 184571 (N.D. Ala. May 22, 2018): The District Court granted plaintiff’s motion for partial summary judgment finding that “the D.C. Circuit invalidated certain portions of the 2015 Order, but not the portion of the Order reaffirming the FCC’s 2003 determination that, ‘while some predictive dialers cannot be programmed to generate random or sequential phone numbers, they still satisfy the statutory definition of an ATDS.’”  Id., at *2.  Ultimately, the District Court found that the plaintiff was “entitled to partial summary judgment on the issue of whether the Defendant’s system is an ATDS under the TCPA” because the Plaintiff “presented sufficient evidence to demonstrate that the system at issue has the capacity to dial numbers without human intervention.” Id., at *3.
  6. Maddox v. CBE Grp., Inc., No.: 1:17-cv-1909-SCJ, 2018 WL 2327037 (N.D. Ga. May 22, 2018): In granting the Defendant’s Motion for Summary Judgment the District Court found that it was in fact bound by both the D.C. Circuit’s decision in ACA Int’l and the FCC’s 2003 interpretation to determine whether the Defendant’s system qualified as an ATDS and that the focus of such interpretation was whether the dialing system could “dial numbers without human intervention.” – more specifically, “whether the system [could] automatically dial a phone number.”  Id., at 4.
  7. McMillion v. Rash Curtis & Assoc., No.: 1:16-cv-03396-YGR, 2018 U.S. Dist. LEXIS 101700 (N.D. CA, June 18, 2018): The Defendant argued that its dialing systems were not an ATDS because they “could not store or produce phone numbers to be called using a random or sequential number generator” as outlined in the statutory language. Id. at *4.  The District Court found that “ACA International invalidated only the 2015 FCC Order” noting that “the court discussed but does not rule on the validity of the 2003 FCC Order or the 2008 FCC Order.”  at *7.  Accordingly, the District Court upheld its previous ruling that the Defendant’s dialing systems were an ATDS because they “possessed ‘predictive dialing’ capabilities which allowed them to operate without human intervention”  Id. at *4.
  8. Sessions v. Barclays Bank Delaware, Action No. 1:17-cv-01600-LMM, 2018 WL 3134439 (N.D. Ga., June 25, 2018): The District Court denied Defendant’s motion for judgment on the pleadings while also finding that the D.C. Circuit invalidated all of the FCC’s pronouncements as to the definition of “capacity” as well as its descriptions of the statutory functions necessary to be an ATDS. Id., at *5.  However, the District Court refused to decide the issue at this stage of the pleadings and went on to state that the ACA Int’l decision presented a “difficult question of statutory interpretation” because “the D.C. Circuit did not say that either interpretation was unreasonable, just that the FCC could not ‘espouse both competing interpretations in the same order.”  Id., at *5.
  9. Ammons v. Ally Fin., Inc., No.: 3:17-cv-00505, 2018 WL 3134619 (M.D. Tenn. June 27, 2018): In perhaps the most thorough examination of the impact of ACA Int’l on the landscape of the TCPA, the District Court determined that “beyond not expressly repudiating the 2003 FCC Ruling, 2008 FCC Ruling, and 2012 Ruling, as discussed above, ACA International supports the conclusion reached in Reyes because the D.C. Circuit explicitly acknowledged the FCC’s 2003 determination that ‘while some predictive dialers cannot be programmed to generate random or sequential phone numbers, they still satisfy the statutory definition of an ATDS.’” Id., at *12-13.  The District Court went on to note that “applying the appropriate standard here, the primary consideration…is ‘whether human intervention is required at the point in time at which [the Plaintiff’s] number [was] dialed.’”  Id., at *15.  It is only the decision within the Sixth Circuit (notably in Tennessee), it’s a decision that was rendered by the Honorable Chief Judge Crenshaw.
  10. O’Shea v. Am. Solar Sol., No. 3:14-cv-00894-L-RBB, 2018 U.S. Dist. LEXIS 110402 (S.D. Cal. July 2, 2018): The Defendant moved to file a second motion for summary judgment, which the District Court subsequently denied holding that “the ACA decision is unhelpful to Defendant because Plaintiff is not arguing that the ViciDial predictive dialer is an ATDS because it could be configured with autodialing functions.  Rather, Plaintiff has submitted undisputed evidence that the ViciDial predictive dialer was in fact presently configured as a predictive dialer.  The ACA decision left intact the holding of both the FCC’s 2003 and 2008 Order that an autodialer is an ATDS.  It follows that the ViciDial predictive dialer is an ATDS.”  Id., at *4.
  11. Pieterson, et al. v. Wells Fargo Bank, N.A., No.: 17-cv-02306-EDL (N.D. CA July 2, 2018): While ruling on Defendant’s motion to stay, the District Court made a specific finding that while “ACA Int’l vacated the 2015 Declaratory Ruling [ ], it did not clearly intend to disturb the FCC’s 2003 and 2008 Orders” and “[e]ven if it had vacated the FCC’s earlier orders, the D.C. Circuit’s ruling does not overrule Ninth Circuit precedent that bears on the question of what constitutes an ATDS.”  Id., at *5.  In line with the numerous opinions before it, the District Court agreed that predictive dialers remain an ATDS pursuant to the 2003 and 2008 FCC Orders.
  12. Pinkus v. Sirius XM Radio, Inc., No. 16-C-10858 (N.D. IL July 26, 2018): The District Court in Illinois ruled that the 2003 FCC Order and the 2008 FCC Declaratory Ruling were invalidated by ACA Int’l. The Court does acknowledge that “most district courts considering the question have held that ACA International vacated only the 2015 Declaratory Ruling”. Id,. at *10.  The Court later notes that “ACA International did not itself articulate a definitive view of which functions characterize an ATDS.” , at *15.  Thereby leaving the decision of what constitutes an ATDS up to the various forums in which the case is located with the majority continuing to hold that a predictive dialer qualifies as an ATDS for purposes of the TCPA.
  13. Gary v. TrueBlue, Inc., Case No. 17-cv-10544, 2018 WL 3647046 (E.D. Mich. Aug. 1, 2018):  In denying the Plaintiff’s Motion for Summary Judgment, the District Court determined that ACA Int’l vacated the portions of the 2015 FCC Order that address what constitutes an ATDS based largely on the fact that the “2015 order supported two competing interpretations of an autodialer”. at *6.  As such, the District Court looked to the statutory language to determine whether the Defendant’s text messaging system qualified as an ATDS.  In doing so, the District Court examined the Defendant’s text messaging system and determined that it did not qualify as an ATDS due to a great deal of “human intervention,” finding that “branch employees must manually edit the list of workers to fit a particular job assignment, craft an outgoing text message, and then click certain keys to send a message.”  Id. at 7.  In reaching this conclusion, the District Court cited to Smith v. Stellar Recovery, Inc., No. 15-cv-11717, 2017 WL 1336075, 2017 U.S. Dist. LEXIS 35658 (E.D. Mich. Feb. 7, 2017), which held “equipment that cannot dial numbers without agents initiating the call is not an autodialer.”  Id., at *7.  It’s further worth noting that the Court directly addressed revocation of consent, and clearly found “A consumer may revoke consent “at any time and through any reasonable means” including orally or in writing.” Id., at 25; see also 30 FCC Rcd 7961, 7989, 7990, 7996 (F.C.C. July 10, 2015); ACA Int’l, 885 F.3d at 692.
  14. Somogyi v. Freedom Mortgage Corp., two different cases but related to the same Defendant, the District Court of New Jersey found n Dominguez, the Third Circuit addressed the scope of the ACA International opinion for the first time. Though the majority of the analysis focused on “the present capacity question,” the Court indicated that the 2003 FCC Order was not overruled: “In light of the D.C. Circuit’s holding, we interpret the statutory definition of an autodialer as we did prior to the issuance of the 2015 [FCC Order].” Quoting Dominguez, 894 F.2d at 119. See Somogyi v. Freedom Mortg. Corp., No. 17-6546 (JBS/SJ) 2018 U.S. Dist. LEXIS 12697 (D.N.J. Aug 2, 2018) and Sieleman v. Freedom Mortg. Corp., Civil Action No. 17-13110 (JBS/JS), 2018 U.S. Dist. LEXIS 129698 (D.N.J. Aug. 2, 2018).
  15. Sieleman v. Freedom Mortg. Corp two different cases but related to the same Defendant, the District Court of New Jersey found n Dominguez, the Third Circuit addressed the scope of the ACA International opinion for the first time. Though the majority of the analysis focused on “the present capacity question,” the Court indicated that the 2003 FCC Order was not overruled: “In light of the D.C. Circuit’s holding, we interpret the statutory definition of an autodialer as we did prior to the issuance of the 2015 [FCC Order].” Quoting Dominguez, 894 F.2d at 119. See Somogyi v. Freedom Mortg. Corp., No. 17-6546 (JBS/SJ) 2018 U.S. Dist. LEXIS 12697 (D.N.J. Aug 2, 2018) and Sieleman v. Freedom Mortg. Corp., Civil Action No. 17-13110 (JBS/JS), 2018 U.S. Dist. LEXIS 129698 (D.N.J. Aug. 2, 2018).
  16. Abante Rooter and Plumbing, Inc. v. Alarm. Com, Case No. 15-cv-06314, 2018 WL 3707283 (N.D. Cal. Aug. 3, 2018):  The Court held that ACA Int’l only invalidated the 2015 FCC Order and specifically found the 2003 and 2008 FCC Orders remained valid. , at *6.  The Court went on to address predictive dialers specifically and noted “the court in ACA International suggests that including a Predictive Dialer in the definition of an ATDS is a permissible interpretation of the statutory language in the TCPA.” Id., at *7.  The Court further determined that “even if the D.C. Circuit had vacated the 2003 and 2008 FCC Orders, ACA International does not control the Ninth Circuit’s interpretation of the statutory language of the TCPA.” Id.  In other words, the Court’s ruling concludes that predictive dialers qualify as an ATDS for purposes of the TCPA, both before ACA Int’l and after.
  17. Keys v. Ocwen Loan Servicing, LLC, 2018 WL 3914707 (E.D. Mich. Aug. 16, 2018) Indeed, courts applying ACA International have noted that the pre-2015 guidance, to the extent it was reaffirmed in the 2015 Declaratory Ruling, no longer warrants judicial deference. Id. at *16 The statute never mentions a capacity to dial from a set list.. Therefore, adhering to the plain language of the TCPA and viewing the facts in the light most favorable to the Defendant, the Court finds that WorkAlert does not qualify as an ATDS as a matter of law.”
  18. Ramos v. Hopele of Fort Lauderdale, 2018 U.S. Dist. LEXIS 139947 (S.D. F.L., August 16, 2018) “The ACA decision invalidated portions of the 2015 Order, but left intact the FC’s prior orders. Id. at *15.– In 2003, the FCC issued an Order that predictive dialers fall within the meaning and statutory definition of an In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 FCCRcd. 14014, 14093 (2003) (the “2003 Order”) Id. at *10 – To summarize, the undersigned concludes that the ACA decision is binding on this Court and, further, that the ACA decision invalidated the FCC’s 2015 Order that a dialing system could be classified as an autodialer under the TCPA even if it possessed a latent or potential ability to dial numbers without human intervention. The ACA decision does not affect the definition of an ATDS as set forth in the FCC’s 2003, 2008, or 2012 Orders. Id. at * 16.
  19. Heard v. Nationstar Mtg. LLC, 2:16-CV-00694-MHH, 2018 U.S. Dist. Lexis 143175 (N.D. Ala. Aug 23, 2018) “The analysis of predictive calls is more complex. Nationstar’s iAssist program applies algorithms to customer information to predict when a customer is most likely to answer the phone. (Doc. 48-16, pp. 31- 32). iAssist then dials numbers for collections representatives based on these predictions. (Doc. 48- 17, pp. 18-19, 21). If iAssist detects a voice response, then the system connects the call to a representative. (Doc. 48-16, p. 54).” “Since 2003, the FCC has regarded predictive dialers like the one used by Nationstar as automatic dialers within the meaning of the TCPA. In the Matter of 11 Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, 14091-93 (July3, 2003). “Mr. Heard withdrew his consent to be contacted on his cell phone, Nationstar’s predictive calls violated the TCPA. Mr. Heard is entitled to summary judgment on his TCPA claims for Nationstar’s blast and predictive calls following the date on which Mr. Heard withdrew his consent”  
  20. Gonzalez v. OCWEN, 5:18-cv-00340-JSM-PRL (MD FL, Sept. 5, 2018)This Court concludes that the definition of an ATDS would not include a predictive dialer that lacks the capacity to generate random or sequential telephone numbers and dial them; but it would include a predictive dialer that has that capacity. And because the D.C. Circuit determined that interpreting capacity to mean a device with a “future possibility” of having those functions is too expansive, this Court considers a device to have the capacity to generate random or sequential telephone numbers only if the device has the “present ability” to do so
  21. Glasser v. Hilton Grand Vacations, 8:16-cv-952-JDW-AAS, 2018 U.S. Dist. LEXIS 162867 (M.D. Fla. Sep. 24, 2018)The Court found that too much human intervention was involved and that the system was not a predictive dialer. “Relevant here, ACA Int’l left intact earlier FCC rulings that “the ‘basic function’ of an autodialer is to dial numbers without human intervention:” For instance, the ruling states that the “basic function” of an autodialer is the ability to “dial numbers without human intervention.” 2015 Declaratory Ruling, 30 FCC Rcd. at 7973 ¶ 14; id. at 7975 ¶ 17. Prior orders had said the same. 2003 Order, 18 FCC Rcd. at 14,092 ¶ 132; 2008 Declaratory Ruling, 23 FCC Rcd. at 566 ¶ 13.”“A predictive dialer is an automated dialing system that uses a complex set of algorithms to automatically dial consumers’ telephone numbers in a manner that ‘predicts’ the time when a consumer will answer the phone and a telemarketer will be available to take the call.” In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14022 n.31 (2003 FCC Ruling). A predictive dialer may fall within the TCPA‘s definition of an ATDS, even though it may not “store or  produce telephone numbers to be called, using a random or sequential number generator.” Id. at ¶ 133. Then it found that “Nothing in the evidence, however, demonstrates that the IMC System used a predictive algorithm or function to engage in predictive dialing.” The court repeatedly quoted the 2003 Order and simply found the system not to be a predictive dialer. 
  22. Flemming v. Associating Credit Serv., 2018 U.S. Dist. Lexis 163120 (D. NJ) (“[M]ost district courts considering the question have held that ACA International vacated only the 2015 Declaratory Ruling—and therefore that courts remain bound by the FCC’s rulings in the 2003 Order and 2008 Declaratory [*21] Ruling that a predictive dialer need not have the capacity to ‘generate random or sequential numbers to be dialed’ to qualify as an ATDS. This court respectfully takes a different view, holding that ACA International necessarily invalidated the 2003 Order and 2008 Declaratory Ruling . . . .” (citations omitted)). While recognizing the disparate views in the case law, I am convinced by the reasoning in Pinkus and similar decisions. I hold that when the D.C. Circuit vacated the 2015 FCC Declaratory Ruling it also necessarily set aside the parts of the previous 2003 and 2008 FCC Orders that ruled that a predictive dialer was impermissible under the TCPA.
  23. Swain v. Credit One Bank (N.D. Ga. 2018) Text message case
  24. Marks v. Crunch No.: 14-56834, 2018 U.S. App. LEXIS 26883 (9th Cir. Sep. 20, 2018) (Statutory definition of ATDS includes devices that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator, including predictive dialers)  Respondent likely cites to the Third Circuit’s decision in Dominguez v. Yahoo, Inc, 894 F.3d 116 (3rd. Cir Jun. 2018) to support its position; however Respondent apparently missed a key passage in the Opinion: “In light of the D.C. Circuit’s holding, we interpret the statutory definition of an autodialer as we did prior to the issuance of 2015 Declaratory Ruling.” (emphasis added) Id. at 7.  018) 
  25. Keifer v. Hosopo Corp., 2018 U.S. Dist. LEXIS 183468 (S.D. Cal. Oct. 25, 2018) Plaintiff alleged telemarketing TCPA violation, Defendant moved to dismiss.  Court found Plaintiff sufficiently pled knowing and willful violation of the TCPA. Court also declined to strike class allegations. Court ruled that “Plaintiff must allege Defendant (1) called a cellular telephone number; (2) using an ATDS or an artificial or prerecorded voice; (3) without the recipient’s prior consent” constituted successful pleading of a TCPA claim. Pursuant to the authority of Marks, “an ATDS need not create or develop the numbers dialed on its own.” Court stated that a motion for class certification was a more appropriate vehicle for testing the validity of a class action than a motion to strike.
  26. Shupe v. Capital One Bank, 4:16-cv-00571-JGZ (AZ, October 25, 2018) An ATDS “means equipment which has the capacity– (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227; see also Marks v. Crunch San Diego, LLC, No. 14-56834, 2018 WL 4495553, at *9 (9th Cir. Sept. 20, 2018) (ATDS devices also include “equipment that could engage in automatic dialing, rather than equipment that operated without any human oversight or control.”) (emphasis in original). Shupe ruled against plaintiff for failing to provide sufficient proof of the ATDS  but followed Marks.
  27. Adams v. Ocwen, Case No. 18-81028, Dkt # 23 (M.D. Fl. Oct. 29, 2018). The Court agrees with Defendant that, pursuant to ACA, the FCC’s prior orders regarding its interpretation of automatic and predictive dialers under the TCPA are not binding. See Marks v.Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018). The Court agrees with the reasoning and conclusions of post-ACA decisions which hold that “the statutory definition of ATDS includes a device that stores telephone numbers to be called, whether or not those numbers have been generated by a random or sequential number generator.” Marks v. Crunch San Diego, LLC, No. 14-56834, 904 F.3d 1041, *1 (9th Cir. Sept. 20, 2018).
  28. Maes v. Charter Communication, District Judge James D. Peterson, Western District Court of Wisconsin “What ACA International did was to reject the FCC’s have-your-cake-and-eat-it-too approach to the questions before it . . . but what ACA International did not do is endorse one interpretation over the other, even implicitly.” “It overstates the holding of ACA International when it says that the “D.C. Circuit overturned the FCC’s decision in the 2015 Declaratory Ruling to ‘reaffirm[] . . . the notion that a device can be considered an autodialer even if it has no capacity itself to generate random or sequential numbers […] The text that Pinkus quotes from is not the holding. It is one example from a list of examples of inconsistencies found in the 2015 order. See ACA Int’l, 885 F.3d at 702. Again, the holding was not that a particular definition was wrong, but that the 2015 order contradicted itself.”
  29. Stewart L. Roark v. Credit One Bank, N.A., No. CV 16-173 (PAM/ECW), 2018 WL 5921652 (D. Minn. Nov. 13, 2018)
  30. Johnson v. Yahoo!, Inc., No. 14-cv-02028 (N.D. Ill. Nov. 29, 2018)The phrase “using a random or sequential number generator” applies to the numbers to be called and an ATDS must either store or produce those numbers(and then dial them). Curated lists developed without random or sequential number
    generation capacity fall outside the statute’s scope.
  31. Richardson v. Verde Energy United States, 2018 U.S. Dist. LEXIS 212558 (E.D. PA, December 14, 2018), Because this Court is bound to follow the holding of Dominguez II, which includes straightforward and very basic algorithm to use the available random number generation functions to generate ten-digit telephone numbers.'” Id. “Notably absent” from Snyder’s declaration, however, was “an explanation of how the [Yahoo messaging system] actually did or could generate random telephone numbers to dial.” The Third Circuit concluded that the report did not create a genuine dispute of material fact because it “d[id] not shed light on the key factual “besides the facts and the outcome, the reasoning essential to that outcome,” Tate v. Showboat Marina Casino P’ship, 431 F.3d 580, 582 (7th Cir. 2005) (Posner, J.), the Court concludes that a predictive dialing device that merely dials numbers from a stored list of numbers-rather than having generated those numbers either randomly or sequentially-is not an ATDS.
  32. Wilson v. Quest Diagnostics, 2:18-11960 (D.N.J. Dec. 18, 2018) (This Court finds the Third Circuit’s interpretation of the TCPA “as we did prior to the issuance of the 2015 [order]” to mean that the D.C. Circuit did not invalidate the 2003 and 2008 Orders, only the 2015 Order.   See Id.   Therefore, a predictive dialer qualifies as an ATDS so long as it has “the [present] capacity to dial numbers without human intervention.” 2003 Order at 14092 (alteration to reflect precedent)
  33. Duran v. La Boom Disco, 2019 U.S. Dist. LEXIS 30012 (E.D. NY, February 25, 2019) The ED of NY found that predictive dialers as defined by the FCC pre-2015 remain an ATDS under the TCPA.  The court specifically held “that a piece of equipment can constitute an autodialer if it relies on a list of numbers, so long as the equipment also has the capacity to dial those numbers without human intervention.”  The court provides a very good analysis of ACA and its impact (or lack thereof) on the FCC Orders pre-dating 2015.
  34. Gadelhak v. AT&T Servs., 2019 U.S. Dist. LEXIS 55200 (N.D. IL, March 29, 2019) “the numbers stored by an ATDS must have been generated using a random or sequential number generator.”
  35. Gonzalez v. Hosopo Corporation, 2019 WL 1533295 (D. MA, April 9, 2019) Ultimately, however, that issue need not be decided here. Put simply, under either interpretation—that is, whether treating ACA Int’l as having invalidated all of the FCC’s rulings, or treating ACA Int’l as having left the FCC’s pre-2015 interpretations in place—this Court reaches the same conclusion: that equipment need not itself be able to generate random or sequential numbers to qualify as an ATDS under the TCPA.
  36. Ruby v. Dish Network, 2019 U.S. Dist. LEXIS 62472 (ED PA, March 25, 2019) The Third Circuit has held that the TCPA‘s language is to be construed “broadly to effect its purpose.” Lesher v. Law Offices of Mitchell N. Kay, P.C., 650 F.3d 993, 997 (3d Cir. 2011). Convergent’s records show that the dial source of the calls made to Plaintiff was a “LiveVox” service. (Doc. No. 69-6 at 2- 5.) The LiveVox system is an automatic dialer that relies on numbers being loaded from a list. (Doc. No. 72-5.) It can be set to make a number of calls with a designated wait period between calls to a consumer. (Id.) The system allows businesses to program the dialer to independently make calls at a set frequency to a list of numbers without requiring a human to prompt each call. (Id.) Considering the TCPA with the requisite level of broadness, the LiveVox appears to be an ATDP for the purposes of determining TCPA