District Court (Ala.) Says ATDS under TCPA Must Have a PRESENT Capacity, at the Time the Calls Were Being Made, to Store or Produce and Call Numbers from a Number Generator

We reported previously on the pending GroupMe petition, as well as others, pending before the FCC regarding whether the TCPA’s definition of autodialer requires a ‘present’ capacity to store numbers.  (http://www.calautofinance.com/?p=3853) A District Court in Alabama recently held that the TCPA so requires: In Hunt v. 21st Mortg. Corp., 2013 WL 5230061 (N.D.Ala. 2013), Judge Acker was deciding a discovery dispute between the parties.  In addressing the discovery issue, Judge Acker addressed the Defendant’s argument that no ATDS was used:

Defendant next argues that “the evidence is undisputed that the subject telephone system as installed and used by Defendant never had the use of an autodialer, predictive dialer or any recording capability.” Def.’s Opp’n at 4. Because the TCPA applies only to “automatic telephone dialing systems,” says defendant, the non-automatic system that plaintiff wishes to inspect is not relevant.  Defendant’s said argument is unavailing. First, the “automatic telephone dialing system” definition applies only to § 227(b)(1)(A), one of several subsections of the statute. Plaintiff has alleged that defendant has violated that subsection, but he has also alleged that defendant made “numerous calls by illegal pre-recorded messages.” Compl. ¶ 53. If true, this behavior would violate § 227(b)(1)(B), which prohibits “initiat[ing] any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party,” regardless of whether the phone system used was an “automatic telephone dialing system.” Plaintiff’s inspection may show that defendant’s system was capable of delivering artificial or prerecorded messages, and it is relevant and discoverable for that purpose. . .  The statutory text plainly focuses on “the capacity” of equipment when defining an “automatic telephone dialing system,” and virtually every court to examine the definition has taken the text at face value. See, e.g., Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036, 1043 (9th Cir.2012) cert. denied, 133 S.Ct. 2361 (U.S.2013) (“[T]he focus must be on whether the equipment has the capacity ‘to store or produce telephone numbers to be called.’ ”) (quoting Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009)) (emphasis in original); Moore v. Firstsource Advantage, LLC, 07–CV–770, 2011 WL 4345703, at *8 (W.D.N.Y. Sept. 15, 2011) (“[T]he TCPA itself makes clear that the issue is the equipment’s capacity to store and generate such types of calls.”); Lozano v. Twentieth Century Fox Film Corp., 702 F.Supp.2d 999, 1010 (N.D.Ill.2010) (“Congress included a definition that provides that in order to qualify as an automatic telephone dialing system, the equipment need only have the capacity to store or produce numbers.”) (emphasis in original). This interpretation is only strengthened by the interpretational principle that, “[b]ecause the TCPA is a remedial statute, it should be construed to benefit consumers.” Gager v. Dell Fin. Servs., LLC, 12–2823, 2013 WL 4463305 (3d Cir. Aug. 22, 2013). Indeed, even defendant’s prized case, Mudgett v. Navy Fed. Credit Union, 11–C–0039, 2012 WL 870758, at *2 (E.D.Wis. Mar. 13, 2012), granted summary judgment to a TCPA defendant only because the plaintiff had “not pointed to evidence from which a fact-finder could reasonably conclude that [defendants] placed calls from telephones that were connected to computers capable of autodialing.” It was the lack of evidence at the summary judgment stage, not the statutory definition, that sank the plaintiff’s case. Surely defendant cannot point to the same lack of evidence at the discovery stage of this case. The argument is deviously circular: defendant hopes that plaintiff cannot obtain information through discovery because he has no evidence, and cannot have evidence because he has not obtained sufficient information in discovery.  While the court has no trouble adopting the rule of the Ninth Circuit and other district courts, the instant case would require the court to stretch the TCPA definition yet a step further. In those earlier cases, the telephone systems at issue were fully equipped and ready to automatically dial numbers at a moment’s notice, and so had the required “capacity” to meet the “automatic telephone dialing system” definition, regardless of how they were actually used. Here, the phone system was (and is) in its present state incapable of automatic dialing. Plaintiff’s argument is that certain software could have been installed onto defendant’s system which would have made automatic dialing possible. See Collins Dep., Pl.’s Ex. A, at 22:4–12.The problem with this reasoning is that, in today’s world, the possibilities of modification and alteration are virtually limitless. For example, it is virtually certain that software could be written, without much trouble, that would allow iPhones “to store or produce telephone numbers to be called, using a random or sequential number generator, and to call them.” Are the roughly 20 million American iPhone users subject to the mandates of § 227(b)(1)(A) of the TCPA? More likely, only iPhone users who were to download this hypothetical “app” would be at risk.  The court therefore holds that, to meet the TCPA definition of an “automatic telephone dialing system,” a system must have a present capacity, at the time the calls were being made, to store or produce and call numbers from a number generator. While a defendant can be liable under § 227(b)(1)(A) whenever it has such a system, even if it does not make use of the automatic dialing capability, it cannot be held liable if substantial modification or alteration of the system would be required to achieve that capability.  This conclusion does not affect the court’s decision on the instant motion, inasmuch as plaintiff may still inspect defendant’s equipment for the reasons stated earlier in this opinion, or in order to verify defendant’s claim that the equipment did not have the required software for automatic dialing or easy installation of such. However, both parties must conduct all further discovery and subsequent litigation in light of the “automatic telephone dialing system” definition explained here.