District Court (Nev.) Says TCPA Defendant’s Argument that Manual Calls were Exempt from TCPA Borders on Frivolous; TCPA’s Definition Focuses on “Capacity”, not “Use”; All that is Required is for Numbers to Be Dumped Into the Dialer in Order to Trigger TCPA

In Bates v. Dollar Loan Center, LLC, 2014 WL 3516260 (D.Nev. 2014), Judge Dawson found that the Defendant’s argument that manual calls were exempt from the TCPA bordered on Rule 11 sanctions. The Court found that the TCPA’s definition of ATDS focuses on “capacity”, not “use”, and all that defendant need have done is dump the numbers into the dialer in order for the TCPA to attach – even if calls were then made manually.

To begin, the Court notes that because the question revolves around capacity and not actual performance, Defendants’ argument that the telephone call at issue here was manually dialed is irrelevant.FN2 [FN2. Further, CCCS’s reliance on Boyd v. Gen. Revenue Corp., 3:11–CV–1243, 2013 WL 866944 (M.D.Tenn. Mar. 7, 2013) is wholly misplaced as the Satterfield decision is controlling authority in this Court, but not in the Middle District of Tennessee. Nor is it relevant that Boyd is now slated for publication. See (# 116).]Defendants argue that the statute penalizes using an ATDS, but that the statute does not apply because CCCS used the equipment to manually dial Grider. This argument ignores or at least dramatically misconstrues Satterfield. Either way, Defendants are encroaching on the bounds set under Federal Rule of Civil Procedure 11(b)(2). The Court expects any future arguments to be firmly grounded in the law and non-frivolous.  As to whether the equipment at issue here is an ATDS, Defendants’ reply is illuminating. “[I]f CCS ever did place call reference numbers in the daily “pool” of calls it makes, CCCS would likely be placing calls to credit references “using” an ATDS in violation of the TCPA.” (# 114 at 6:23–25). As noted above, it is wholly irrelevant under Satterfield if, as Defendants emphasized, “ CCCS does not do that.” (# 114 at 6:25–26). The inquiry here is whether the equipment has the capacity to act as an ATDS, and Defendants admit that in its present configuration, it “likely” does. All Defendants must do to actually autodial is dump the relevant telephone numbers into the “pool.” To be clear, the Declaration of Kevin Kozar (marked as Exhibit G despite sharing that appellation with another exhibit, “Opposition to Motion for Sanctions”) states at paragraph 15 “Credit reference telephone numbers are never placed in the daily ‘pool’ of calls delivered to the company’s autodialer, which functions separately from these live calls.” However, the question is capacity, not actual function. The above description suggests that the equipment used to call Grider has the current capacity to autodial, likely making it an ATDS. Defendant has accordingly failed to meet its initial burden of showing the absence of a genuine issue of material fact regarding whether Defendants violated the TCPA by using an ATDS to contact Grider.