District Court (Nev.) Denies TCPA Defendant’s MSJ; Says Manually Dialed Calls Not Exempt Where ATDS Still Has Capacity to Store Numbers as Defined by TCPA

In Bates v. Dollar Loan Center, LLC, 2014 WL 60472 (D.Nev. 2014), Judge Dawson denied a TCPA defendant’s Motion for Summary Judgment on the issue of whether an ATDS was used.  The facts were as follows:

This is a class action complaint. Defendants are “all involved in the business of high-interest, short-term loans (i.e. ‘payday loans’).” (# 1; 2:24–25). Fur-ther, it is asserted that these businesses collect “references” from borrowers under false pretenses, ultimately using these contacts primarily in collection efforts. Id. at 14–15. Plaintiffs are those named as “references” and subsequently contacted in the col-lection process. Plaintiffs assert that Defendants have violated the Telephone Consumer Protection Act (“TCPA”). Id. at 2:19–23.

Judge Dawson was not convinced by the Defendant’s arguments that it manually dialed the calls; the issue was whether its system had the capacity to store numbers as defined by the TCPA and interpretative regulations.

Plaintiff argues that Cash 1 used an automatic telephone dialing system (“ATDS”) to contact Plain-tiff, either using the automatic function or by manually dialing Pratt. Cash 1 has filed an affidavit asserting that it is Cash 1’s business practice and official policy to use an ATDS only to contact borrowers and never to contact third parties. (# 18, Ex. B). Cash 1 further avers that neither it nor its agents contacted Pratt at the number provided on the loan application after the initial verification of the number at loan origination. (# 18, Ex. B). Cash 1 has also filed an affidavit clarifying that while is uses an ATDS in its business, it uses an entirely different phone system to manually dial references for application verification purposes. (# 41, Ex. A). Cash 1 has also provided a report reflecting no autodialed calls made to the number provided for Pratt, and verified this report by affidavit. (# 18, Ex. B, Ex. C). However, while heavily implied, Cash 1 fails to provide any admissible statement that the system used to manually dial Pratt’s number lacks the capacities which define an ATDS. Accordingly, the Court cannot find that no genuine dispute exists regarding this material fact.