A District Court judge in Pennsylvania has granted summary judgment to a defendant that was accused of violating the Telephone Consumer Protection Act by contacting an individual on his cell phone after he had revoked consent to be contacted, because the defendant was not using an automated telephone dialing system.
A copy of the ruling in the case of Smith v. Navient Solutions, LLC, can be accessed by clicking here.
The plaintiff co-signed for his daughter’s student loan, which went into default. The plaintiff provided his cell phone number to the defendant and consented to be contacted on it. Nearly two years later, the plaintiff revoked consent to be contacted, but received 136 more calls from the defendant.
In looking at the complicated legal history surrounding the TCPA and what defines an ATDS following the D.C. Court of Appeals’s ruling in ACA International v. FCC, the judge in this case — Judge Kim Gibson from the District Court for the Western District of Pennsylvania — ruled that a predictive dialing device, such as the one used by the defendant, does not meet the definition of an ATDS because it does not have the capacity to randomly or sequentially generate numbers to be called; the numbers must be uploaded by the user. Judge Gibson looked to the Third Circuit Court of Appeals’s decision in Dominguez v. Yahoo, Inc., and the subsequent District Court decisions that have followed in holding that predictive dialers are not de facto ATDS’s.
Wrote Judge Gibson:
In some cases, predictive dialers may be ATDSs where some feature of the software enables them to randomly or sequentially generate numbers to be called. However, where a predictive dialer merely calls consumer numbers from a list that that is separately created and uploaded onto the software, the predictive dialer itself is not generating any numbers to be called. In that situation, the predictive dialer is not an ATDS so long as it does not have the present capacity to randomly or sequentially generate numbers to be called. In sum, the Court finds that a predictive-dialing device is not an ATDS merely because it calls consumers from a preprogrammed list of numbers that was inputted into the device. Rather, the device itself must have the capacity to generate numbers.
