In Fleming v. Associated Credit Services, Inc., 2018 WL 4562460 (D.N.J., 2018), Judge McNulty found that a LiveVox HCI predictive dialer was not an ATDS under the TCPA.
While recognizing the disparate views in the case law, I am convinced by the reasoning in Pinkus and similar decisions. I hold that when the D.C. Circuit vacated the 2015 FCC Declaratory Ruling it also necessarily set aside the parts of the previous 2003 and 2008 FCC Orders that ruled that a predictive dialer was impermissible under the TCPA. . . The TCPA explicitly defines an ATDS as “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)(1). Does a system that dials numbers from a list that was not randomly or sequentially generated when the list was created qualify as an ATDS? With only the statutory text to guide me, I am convinced that the answer is no.The phrase “using a random or sequential number generator,” I believe, applies to the manner in which the numbers make their way onto the list—not to the manner in which the numbers are dialed once they are on the list. . .Nowhere does she allege that the numbers are being randomly or sequentially generated for placement onto that campaign database call list. The evidence presented in Ms. Fleming’s statement of material facts describes a predictive dialing system; it does not describe a system which “store[s] or produce(s] telephone numbers to be called, using a random or sequential number generator” under the TCPA. I therefore find that ACS’s LiveVox HCI system, as presented in this case, is merely a predictive dialer and not an ATDS under the TCPA. . . Still, without authoritative agency guidance, I am confined to the words of the statute, which is addressed to “equipment” that randomly generates or dials numbers. See supra. In short, ACS has found an effective workaround; Congress might amend the statute to ban this kind of system, or the FCC might possess the theoretical power to ban it, but neither has effectively done so. The action of the “clicker agent” (taking Ms. Fleming’s factual description as true), constitutes enough “human intervention” to bring the system outside the statutory definition of an ATDS. Because I find that Ms. Fleming has not sufficiently shown that ACS’s LiveVox HCI system is an ATDS, I will grant ACS’s motion for summary judgment in its favor as to Ms. Fleming’s claims under the TCPA.
Judge McNulty found, however, that a triable issue of fact existed whether the pattern and volume of calls violated the FDCPA.
As to number and frequency, courts in various districts have found that a relatively small amount of calls, even unanswered ones, over a short period of time could constitute a violation of the FDCPA. See, e.g., Carr v. NCO Fin. Syst, Inc., No. 11-2050, 2011 WL 6371899, at *1 (E.D. Pa. Dec. 20, 2011) (denying a motion to dismiss where the plaintiff alleged receiving “constant” and “continuous” calls “once every two, three, four, or five days” over an estimated period of thirty days, amounting to around nine calls); Bruner v. AllianceOne Receivables Mgmt., Inc., No. 15-9726, 2017 WL 770993, at *3 (N.D. Ill. Feb. 28, 2017) (denying a motion to dismiss where plaintiff alleged at least eleven phone calls over the span of six weeks); Jones v. Sw. Credit Sys., No. 17-487, 2017 WL 4736790, at *1, *3 (E.D. Pa. Oct. 18, 2017) (finding that evidence of ten calls over eighteen days created “a genuine dispute … as to whether Defendant intended to annoy, abuse, or harass Plaintiff and therefore denying defendant’s summary judgment motion); Black, 2018 WL 3546193 at *6 (collecting cases where “courts have held that a jury should determine whether a defendant acted with intent to harass by making frequent phone calls”); but see Reed v. IC Sys., Inc., No. 15-279, 2017 WL 89047, at *5 (W.D. Pa. Jan. 10, 2017). In this case, ACS called Ms. Fleming fifteen or sixteen times over the course of roughly three months. That is not an egregious total in comparison to some of the other cases that have found FDCPA violations. Nor do there seem to be aggravating factors, such as placement of calls outside of normal business hours. It is significant, however, that the calls all occurred after the September 15, 2015 conversation in which Ms. Fleming clearly expressed her inability to pay and personal hardships: “I am unemployed right now. I just got myself out of a domestic violence relationship. I fled and I have nothing. I don’t have my own home, my own car. I have nothing. I don’t have a job. It’s me and my three kids and I live in somebody else’s house…. So there’s literally nothing that I can even give you. Everything is being put off. I mean I’m trying to get my life back together.” (ECF no. 24-5, at pp. 105-07). It was in the weeks following that conversation that ACS called Ms. Fleming fourteen or fifteen more times. It would be unduly formulaic to merely count the number of the calls without appreciating the full context. A reasonable fact finder could infer that ACS had the intent to harass or annoy Ms. Fleming by continuing to call her after being made aware of her dire financial situation.