This article previously appeared on the Burr Foreman Consumer Finance Litigation blog and is re-published here with permission. Katherine West also contributed to this article.
In Ferrer v. Bayview Loan Servicing, LLC, No. 15-20877-Civ-Scola, 2018 WL 582584 (S.D. Fla. Jan. 26, 2018), the Southern District of Florida determined that a telephone dialing system that was incapable of predictively dialing, storing, or independently producing telephone numbers and could not place a call without human input was not an automatic telephone dialing system (“ATDS”) within the meaning of the Telephone Consumer Protection Act (“TCPA”).
Plaintiff Maria Ferrer (“Plaintiff”) filed suit against Bayview Loan Servicing, LLC and other defendants (“Bayview”) alleging, among other things, that Bayview violated the TCPA. The TCPA prohibits calls made “using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . or any service for which the called party is charged for the call” unless the call is for emergency purposes or the called party has provided prior consent. 47 U.S.C. § 227(b)(1)(A)(iii). Thus a plaintiff asserting a claim under the TCPA must establish that the call(s) at issue were made to a cell phone number, the defendant made the call(s) using an ATDS or an artificial or prerecorded voice, and the call was made without the called party’s prior express consent. See Ferrer, 2018 WL 582584, at *6.
In Ferrer, Plaintiff claimed Bayview violated the TCPA by repeatedly calling her cell phone number. Bayview moved for summary judgment on Plaintiff’s TCPA claim in part on the grounds that Bayview did not use an ATDS for the calls it made to Plaintiff’s cell phone. The court agreed that Bayview did not use an ATDS to place calls to Plaintiff’s cell phone, and, therefore, granted Bayview’s motion for summary judgment.
Pursuant to the TCPA, an ATDS is “equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” 47 U.S.C. § 227(a)(1). In Ferrer, the court relied on the declaration of a Bayview employee which explained that the system Bayview used to call Plaintiff’s cell phone number merely allowed “a user to dial phone calls using a computer keyboard and mouse, and . . . the calls must be manually dialed.” Ferrer, 2018 WL 582584, at *6. The declaration further explained that the system used could not make a call “without human input, and [could not] dial predictively, store, or produce telephone numbers independently.” Id. The court determined that such a system did not constitute an ATDS within the meaning of the TCPA.
Though Bayview admitted it used another system that was an ATDS to make calls to other numbers belonging to Plaintiff, the court held that the mere use of an ATDS to place some calls was not enough to establish TCPA liability. Instead, there must be evidence “the auto-dialer was used to contact [the plaintiff] on her cell phone in a manner prohibited by the TCPA.” Id. As discussed above, the Court found no evidence Bayview used an ATDS to call Plaintiff’s cell number in violation of the TCPA and granted Bayview’s motion for summary judgment.