District Court (Pa.) Can’t Follow Marks, Says Predictive Dialer Is Not an ATDS

In Richardson, et. al., v. Verde Energy USA, Inc., Civ. No. 15-6325, 2018 WL 6622996 (E.D. Pa. December 17, 2018), Judge Beetlestone declined to follow the 9th Circuit’s decision in Marks, and found that Defendants predictive dialer was not an ATDS under the TCPA.

A careful parsing of ACA International indicates that the invalidation of the 2015 Order necessarily invalidated the 2003 and 2008 Orders as well. Recall that the D.C. Circuit found the 2015 Order arbitrary and capricious because it gave “no clear answer,” ACA Int’l, 885 F.3d at 703, as to the critical question of “whether a device must itself have the ability to generate random or sequential telephone numbers to be dialed,” or whether it would be “enough if the device can call from a database of telephone numbers generated elsewhere.” Id. at 701. In ACA International, the D.C. Circuit explained that, in their determination that all predictive dialers qualified as ATDSs, the 2003 and 2008 Orders were similarly inconsistent as to this basic question. Id. at 702-03. . . . . The D.C. Circuit pointed out that the 2003 Order “suggested it saw a difference between calling from a list of numbers, on one hand, and ‘creating and dialing’ a random or arbitrary list of numbers, on the other hand.” Id. at 702; see also 2003 Order, 18 F.C.C.C. Rcd. at 14091. And yet, the 2003 Order also “made clear that, while some predictive dialers cannot be programmed to generate random or sequential phone numbers, they still satisfy the statutory definition of an ATDS.” ACA Int’l, 885 F.3d at 702; see also 2003 Order, 18 F.C.C.C. Rcd. at 14091 n.432, 14093. The 2003 Order—like its successor the 2015 Order—thus provided “no clear answer,” ACA Int’l, 885 F.3d at 703, as to the critical question of whether a predictive dialer “must itself have the ability to generate random or sequential telephone numbers to be dialed,” or whether it would be “enough if the device can call from a database of telephone numbers generated elsewhere,” id. at 701. Instead, the 2003 Order suggested either set of “competing interpretations,” id. at 702, would satisfy the statutory definition of an ATDS—a middle-ground position the D.C. Circuit deemed arbitrary and capricious in ACA International. Id. at 702-03. . . .The invalidation of the 2015 Order therefore necessarily invalidated the 2003 and 2008 Orders as well “to the extent they express the same understanding” as the 2015 Order that “all predictive dialers qualify as ATDSs.” Id. The 2003 and 2008 Orders are therefore invalid and no longer binding on this Court as to whether predictive dialers qualify as ATDSs. . . Plaintiffs argue, though, that there remains a genuine issue of material fact as to whether the CallShaper Predictive Dialer can, in fact, produce numbers to be called using a random or sequential number generator. The only evidence Plaintiffs introduce for this proposition is testimony from telecommunications consultant Randall A. Snyder, who claims that the “CallShaper maintains technology within its platform to generate random numbers.” The Third Circuit in Dominguez II, however, upheld a district court’s exclusion of a nearly identical report from the same expert on this precise issue. 894 F.3d at 120. The Third Circuit explained that the Snyder report in Dominguez II, like the report here, “explain[ed] the role that random number generators play in various commonly available computer operating systems … and posits that ‘it is a straightforward and very basic algorithm to use the available random number generation functions to generate ten-digit telephone numbers.’ ” Id. “Notably absent” from Snyder’s declaration, however, was “an explanation of how the [Yahoo messaging system] actually did or could generate random telephone numbers to dial.” The Third Circuit concluded that the report did not create a genuine dispute of material fact because it “d[id] not shed light on the key factual question actually at issue in this case—whether the [Yahoo messaging system] functioned as an autodialer.” Id. at 121. The same flaw is fatal to Plaintiffs’ argument.6 Snyder’s report contains “overbroad, generalized assertions,” id. at 120, about the ability of computer programs to generate random numbers generally. Absent from the report, though, is an explanation of how the CallShaper Predictive Dialer “actually did” generate random telephone numbers to dial. Id. at 121. Because the report “does not shed light on the key factual question actually at issue in this case—whether the [CallShaper Predictive Dialer] functioned as an autodialer by randomly or sequentially generating telephone numbers, and dialing those numbers,” the report does not create a genuine dispute of fact as to whether the equipment “had the capacity to function as an autodialer.” Id. Defendant’s motion for partial summary judgment will therefore be granted on Plaintiffs’ claims to the extent that they are based on the alleged use of an ATDS.