In Smith v. Navient Sols., LLC, No. 3:17-191, 2019 U.S. Dist. LEXIS 131231 (W.D. Pa. Aug. 4, 2019), Judge Gibson granted summary judgment against a TCPA plaintiff.
The Court agrees with the reasoning in these cases. Predictive dialers do not necessarily qualify as ATDSs under the plain language of the statute or the Third Circuit’s guidance in Dominguez. To reiterate, a predictive dialer is a device that automatically calls telephone numbers from a preprogrammed list or separate computer database where telephone numbers are stored. Predictive dialers do not necessarily generate numbers to be called. Moreover, predictive dialers do not necessarily have the capacity to randomly or sequentially generate numbers to be called. 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…. The Court’s conclusion on Snyder’s declaration is consistent with how other courts have dealt with it. In Dominguez, the Third Circuit held that Snyder’s declaration did not create a genuine dispute of material fact on whether the system at issue was an ATDS.6 Dominguez, 894 F.3d at 120-21. There, the Third Circuit stated that “Snyder purports to address present, not just latent, capacity, by repeatedly opining that ‘Yahoo’s Email SMS Service system had the ability to generate random numbers and, in fact, did generate random numbers.’ This opinion, however, is supported by little more than the same type of overbroad, generalized assertions.” Id. at 120. “Notably absent, however, is any explanation of how the Email SMS system actually did or could generate random telephone numbers [*26] to dial.” Id. Like in Dominguez, the conclusion in Snyder’s declaration here is supported only by overbroad generalizations. Crucially, Snyder does not explain how the ININ system actually did or could generate telephone numbers to be called. Accordingly, Snyder’s declaration does not create a genuine dispute of material fact that the ININ system is an ATDS. See also Ramos v. Hopele of Fort Lauderdale, LLC, 334 F. Supp. 3d 1262, 1265 (S.D. Fla. 2018) (“The Court finds that Snyder’s testimony is insufficient to create a genuine dispute of material fact . . . that the EZ-program texting system is not an automatic telephone dialing system under the Telephone Consumer Protection Act.”). Moreover, in another case, Snyder testified that the ININ system does not have the capacity to generate random or sequential numbers. In that case, Snyder testified as follows in a deposition: Q: [The ININ system] doesn’t have the capability, as you used, to whole cloth generate random numbers for dialing? A: That’s right. Just doesn’t create them and generate them out of thin air. Q: And likewise it doesn’t have the capability to generate whole cloth a sequential number list independent of what its fed for a particular campaign. A: That’s right. No automatic dialing systems, actually, that I know if in the United States have had that functionality for 20 to 25 years. (ECF No. 58 ¶ 29; ECF No. 59-7 at 23-25.) In conclusion, the Court finds that there is no genuine dispute of material fact that the ININ system that Navient used to call Smith is not an ATDS under the TCPA. Therefore, Smith’s TCPA claim fails as a matter of law and Navient is entitled to summary judgment.