District Court (Fla.) Grants Summary Judgment to TCPA Defendant who “Point-and-Click” Manually Dialed Collection Calls, Even though Defendant Otherwise Had a Dialer

In Estrella v. LTD Financial Services,  2015 WL 6742062, at *1-3 (M.D.Fla., 2015), Judge Whittemore granted summary judgment to a TCPA defendant who manually dialed calls by a “point-and-click” method.

To succeed on his TCPA claim, Plaintiff must establish that Defendant placed calls to his cellular phone using an ATDS or artificial or prerecorded voice. The TCPA prohibits the use of an ATDS to call a telephone number assigned to a cellular telephone service (other than for purposes of an emergency), without the prior express consent of the ‘called party.‘ 47 U.S.C. § 227(b)(l)(A)(iii).¹ ‘The term ‘automatic telephone dialing system’ means equipment which has the capacity–(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.‘ 47 U.S.C. § 227(a)(l). The definition of ATDS includes predictive dialers.² 2003 FCC Ruling at *46. The essential function of an ATDS is ‘the capacity to dial numbers without human intervention.‘ Id. *2 . . . Defendant contends there is no evidence to support Plaintiffs allegation that Defendant placed calls to Plaintiffs cellular phone using an ATDS or artificial or prerecorded voice and that the evidence is to the contrary. David John, Defendant’s senior vice president, testified that the calls at issue in this case were placed by employees of Defendant manually using a ‘point and click function‘ (Dkt. 28-1, David John Dep. at 40:13-41 :12; Dkt. 28-2, David John Dec. 6). John also averred that Defendant did not place any telephone calls to Plaintiff through the use of an artificial or prerecorded voice (John Dec. at if 7).   In opposition, Plaintiff submits his unsworn declaration (Dkt. 35-1 ). According to Plaintiff, he ‘could tell‘ Defendant was using an ATDS to call him because when he answered there was ‘a prolonged silence‘ and what he would describe as ‘delays and clicks,‘ as well as prerecorded messages (id. at ¶¶ 8, 23). . . Notwithstanding, the pertinent statements in Plaintiffs unsworn declaration do not establish that Defendant used an ATDS– ‘dialing equipment‘ that ‘has the capacity to store or produce, and dial random or sequential numbers‘–to dial his cellular phone. See 47 U.S.C. § 227(a)(1); 2015 FCC Ruling at *5-6. Nor do they establish that the calls were made using a predictive dialer. There is no evidence in the record demonstrating the type or the brand of equipment Defendant used to call Plaintiffs cellular phone. To the contrary, the evidence demonstrates, at most, that the calls were placed manually with the use of human intervention through a ‘point and click function.‘  Plaintiff argues that at the time Defendant placed calls to his cellular phone it had the present capacity to use an ATDS and it is Defendant’s burden to prove it did not use an ATDS or predictive dialing system to make those calls (Dkt. 35 at 9). Plaintiff makes broad assertions that Defendant uses Castel Connects and Avaya predictive dialing systems, which ‘are considered to have the present capacity to autodial such that they are an automatic telephone dialing system‘ (Dkt. 35 at 3, 8-9). While that may be true, there is no evidence that Defendant used either of these predictive dialing systems to place calls to Plaintiffs cellular phone. And again, to the contrary, John testified that the calls were placed manually.⁶ Finally, there is no foundation or support for Plaintiffs conclusion that ‘clicks and delays‘ and ‘prolonged silences‘ means that an ATDS or predictive dialer was being used to place the calls. See Avirgan, 932 F.2d at 1577 (Plaintiffs evidence ‘cannot consist of conclusory allegations or legal conclusions.‘).

The Court stated in a footnote that the Plaintiff’s cheeky reliance on a website establishing that certain technology was a dialer was insufficient to state a triable issue of fact because Plaintiff introduced no evidence that Defendant “used” the dialer to place the call.

6.  Plaintiff’s reliance on Castel Connects’ website is misplaced. Even accepting that the website establishes that Defendant uses Castel Connects equipment in some aspect of its business, that is all it does. To conclude that Defendant used an ATDS to call Plaintiff solely because Defendant may have had the capacity to use an ATDS because it uses Castel Connects equipment requires far too much speculation. See Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (‘[U]nsupported speculation does not meet a party’s burden of producing some defense to a summary judgment motion. Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.‘) (citation and quotation omitted). To be sure, it is not even clear that all Castel Connects equipment constitutes an ATDS or predictive dialer.