District Court (Pa.) Largely Denies Both Parties’ MSJs in TCPA Case

In Gillard v. Receivables Performance Mgmt., LLC, No. CIV.A. 14-02392, 2015 WL 3456751, at *6 (E.D. Pa. June 1, 2015), Judge Pappert largely denied both parties’ claims for relief under the TCPA.

RPM moves for summary judgment in its favor on the same issue. (Def.’s Mem. Supp. Mot. Summ. J. at 10, Doc. No. 45–1). It also moves for summary judgment on the issues of whether it had William’s express consent to call his cell phone, whether it is liable for calls made to a cell phone belonging to William’s ex-wife, whether liability for some of the calls made to Alicia is barred by the relevant statute of limitations, and whether the Gillards can establish that RPM willfully and knowingly violated the TCPA. . . [T]he Gillards resided in Gilbertsville, Pennsylvania and were located within the United States. (Id. ¶¶ 1–2.) William had a cell phone with an assigned phone number ending in 0625, and Alicia had a cell phone with an assigned number ending in 4541. (Id. ¶¶ 5, 6.) William incurred a debt with Sprint, his cell phone carrier. (Id. ¶ 4.) Sprint retained RPM to collect this debt. (Id.) In an effort to collect the debt, RPM placed calls to the Gillards’ cell phones using a Noble Systems Dialer. (Id. ¶¶ 7, 8.) RPM also utilized a third-party vendor named Global Connect to place calls to the Gillards’ cell phones. (Id. ¶ 10.) In total, RPM and Global Connect made 172 calls to the Gillards’ cell phones. (Id. ¶¶ 12–14.) These calls occurred between July 19, 2010 and December 12, 2010, then again between October 5, 2014 and October 17, 2014. (Id. ¶¶ 11, 14.)

The District Court denied both parties’ Motion(s) for Summary Judgment as to whether an ATDS was used.  The Court found that, although the Plaintiff need not use an expert to establish use of an ATDS, the Plaintiff could not rely on other courts’ findings regarding the technology used.

The Gillards also contend that RPM is collaterally estopped from asserting that it did not call the Gillards using an ATDS because RPM stipulated in another case that the telephone system it used to call another debtor met the TCPA’s statutory definition of an ATDS. The Court, however, will not preclude RPM from contesting that the phone system used in this case does not meet the statutory definition of an ATDS simply because it decided not to contest that issue in another case. . . The Gillards’ remaining evidence shows only how RPM’s Noble Systems Dialer functions generally. There is no specific evidence to show how the Noble Systems Dialer functioned at the time the calls to the Gillards were placed. Therefore, the Gillards fail to show that RPM’s telephone system met the statutory definition of an ATDS as it was configured and used at the time RPM placed the calls to the Gillards. See Hunt v. 21st Mortg. Corp., No. 12–cv–2697, 2013 WL 5230061, at *4 (N.D.Ala. Sept.17, 2013) (holding that to meet the TCPA’s definition of an ATDS, “a system must have a present capacity, at the time the calls were being made, to store or produce and call numbers from a number generator.”); Legg v. Voice Media Grp., Inc., 20 F.Supp.3d 1370, 1376 (S.D.Fla.2014) (denying plaintiff’s motion for summary judgment where plaintiff did not show “that these broadcasts are transmitted without human intervention. It may be possible, if improbable, that Phaz2 employed individuals to transmit each broadcast at the predetermined time.”). In short, in moving for summary judgment with regard to the use of an ATDS, the Gillards ask the Court to draw an inference in their favor that because the Noble Systems Dialer had certain functionality and was used in a certain way in other contexts, it had the same functionality and was used in the same way with regard to the calls made to them. While that inference may be a reasonable one, it is not the only one. The Court cannot grant the Gillards’ motion for summary judgment under such circumstances. See Ideal Dairy Farms, Inc. v. John Labatt, Ltd., 90 F.3d 737, 744 (3d Cir.1996) (“Summary judgment may not be granted if there is a disagreement over what inferences can be reasonably drawn from the facts even if the facts are undisputed.”) (quotation omitted). *4 The Gillards likewise do not present sufficient evidence to show the absence of a genuine dispute of material fact as to whether any of the calls made to them used an automated or prerecorded voice. The Gillards present no evidence to show that an automated or prerecorded voice was used for the calls that RPM made to them directly. With regard to the calls from Global Connect, the Gillards present a call script and testimony that RPM uses Global Connect to leave automated text-to-speech messages using voice broadcasting. But the Gillards once again do not present any evidence to show if or how the call script or automated voice broadcasting was used for the calls Global Connect made to them. The Gillards’ motion is therefore denied.   RPM also moves for summary judgment on this issue. RPM argues that without expert testimony the Gillards cannot establish that RPM used an ATDS or artificial prerecorded voice. While expert testimony on these issues might be helpful to a jury, it is not necessary. Indeed, several courts have determined the issue without the help of expert testimony. See, e.g., Davis v. Diversified Consultants, Inc., 36 F.Supp.3d 217, 225 n. 11 (D.Mass.2014) ( “Defendant contends, as a preliminary issue, that plaintiff’s claim must fail because expert testimony is needed to determine whether LiveVox is an ATDS. Some plaintiffs have indeed employed an expert for this purpose, but others have proved their claims without the use of an expert. Viewing the evidence presented here as a whole, it does not appear that expert testimony is necessary to determine the question.”) (citations omitted). The Court likewise rules that the Gillards do not have to present expert testimony to prove that RPM used an ATDS or artificial or prerecorded voice.

Although the District Court suggested that it was going to have to wade into the issues of (un)authorized consent, it did not have to in the end because the District Court found that there was a triable issue of fact as to whether consent was revoked.  The District Court also denied the defendant’s motion on the question of a willful violation of the TCPA.

RPM asks for summary judgment on the issue of whether any TCPA violation was willful or knowing. RPM argues that because of the “divergences of opinions and the lack of clear direction as to what constitutes an ATDS, RPM cannot be found to have willfully or knowingly” violated the TCPA. While a divergence of opinion could certainly militate against a finding of a willful or knowing violation, it would not preclude it. See, e.g., Fifty–Six Hope Rd. Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059, 1078 (9th Cir.2015) (“Defendants argue that the uncertainty of the law makes A.V.E.L.A.’s infringement not willful. In this case, the uncertainty of the law weighs in A.V.E.L.A. Defendants’ favor, but that consideration is only one aspect of the willfulness inquiry.”). The Court will not remove this question from the province of a jury based solely on a professed uncertainty in the law. See, e.g., Desmond v. Phillips & Cohen Assocs., Ltd., 724 F.Supp.2d 562, 570 (W.D.Pa.2010) (denying summary judgment in Fair Debt Collection Practices Act case because “whether the content, duration, quantity, or nature of the calls/letters/messages at issue rises to the level of being intentional, willful, wanton or reckless is a question for the jury.”).