District Court (Fla.) Says LiveVox is an ATDS under the TCPA; Says Question of Fact Whether TCPA Plaintiff Orally Revoked Consent

In Smith v. Markone Financial, LLC, 2015 WL 419005 (M.D.Fla. 2015), Judge Corrigan granted partial summary judgment to a TCPA plaintiff on the basis that a LiveVox dialing system used by the defendant was an ATDS under the TCPA.

As it is undisputed that MarkOne called Smith using a LiveVox system, the Court only needs to determine whether that system is an ATDS. MarkOne argues that the absence of any evidence that the LiveVox system used a random or sequential number generator establishes that the system is not an ATDS. (Doc. 68 at 16). However, the FCC has ruled that a dialer need not have a random or sequential number generator to qualify as an ATDS. See In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. at 14091–93 (finding that the TCPA was intended to protect against autodialed calls, including calls from a list of numbers). ¶ MarkOne alternatively argues that the LiveVox system is not an ATDS because there is no evidence that it is hardware that, when paired with certain software, has the capacity to store or produce numbers and dial those numbers. (Doc. 115 at 4). In other words, MarkOne argues that the LiveVox system is not a predictive dialer. Nikhilesh Nath, MarkOne’s chief information officer, testified that MarkOne uploads a list of accounts, including telephone numbers, to the LiveVox system early every morning. (Doc. 74–13 at 17–19). The LiveVox system then dials the numbers in the order in which it was set to call them. (Doc. 74–13 at 24). In deciding when to call the next number, the system predicts when a collection agent will be available to pick up a call. (Doc. 74–13 at 27). As the LiveVox system automatically dials numbers from a downloaded list and predicts when a collection agent will be available to pick up the call, it is a predictive dialer and an ATDS.

The District Court also found a question of fact as to whether consent was revoked.

On February 13, 2013, a MarkOne employee noted that Smith confirmed that Robinson lived at Smith’s home, and agreed that Smith’s cell phone number was a good number to reach Robinson. (Doc. 74–4 at 17). Smith testified both that she never said that (Doc. 74–7 at 106) and that she could not remember whether she said that or not (Doc. 74–7 at 113). However, even if Smith made the statement and even if the statement constituted consent, MarkOne is still not entitled to summary judgment. Smith alleges that she told MarkOne to stop calling her every time that it called. (Doc. 74–7 at 99). Specifically, Smith noted in her call log that she told MarkOne to stop calling her on March 16 and April 1. (Doc. 74–5). Nevertheless, MarkOne continued to call her using the Live Vox system until April 2, 2013. (Doc. 68–5 at 4). Therefore, even assuming that Smith consented to MarkOne’s calls on February 13, 2013, there is an issue of material fact as to whether and when she revoked that consent.