Morse v. Allied Interstate, LLC

• Decision Date: 09 December 2014
• Docket Number: Civil No. 3:13–cv–00625.
• Citation: 65 F.Supp.3d 407
• Parties: Julianna MORSE, Plaintiff v. ALLIED INTERSTATE, LLC, Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

65 F.Supp.3d 407

Julianna MORSE, Plaintiff

v.ALLIED INTERSTATE, LLC, Defendant.

Civil No. 3:13–cv–00625.

United States District Court, M.D. Pennsylvania.

Signed Dec. 9, 2014.

Filed Dec. 10, 2014.

Brett M. Freeman, Sabatini Law Firm LLC, Dunmore, PA, for Plaintiff.

Ronald M. Metcho, II, Marshall Dennehey Warner Coleman & Goggin, Philadelphia, PA, for Defendant.

MEMORANDUM

WILLIAM J. NEALON, District Judge.

On March 8, 2013, Plaintiff, Julianna Morse, filed a complaint against Defendant, Allied Interstate, LLC, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) and the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq. (Doc. 1). Following discovery, both parties filed motions for partial summary judgment with statements of facts and supporting briefs. (Docs. 22–24, 28–29, 32–34, 37). The parties seek judgment on Plaintiffs TCPA claim, and at issue is whether Defendant's dialing technology is an “automatic telephone dialing system” (“ATDS”).¹ See 47 U.S.C. § 227(a)(1)(A). The motions are now ripe for disposition, and for the reasons that follow, Plaintiff's motion will be granted.

I. Standard of Review

Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c) ; Turner v. Schering–Plough Corp., 901 F.2d 335, 340 (3d Cir.1990). The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. National Wildlife Federation, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). All inferences “should be drawn in the light most favorable to the nonmoving party, and where the nonmoving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co., 24 F.3d 508, 512 (3d Cir.1994), quoting Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).

II. Statement of Facts

In an attempt to collect a debt, Defendant placed three-hundred fifty-six (356) calls to Plaintiff's cellular phone number. (Doc. 23, ¶¶ 3 & 10) admitted in (Doc. 29–1, ¶¶ 3 & 10); see also (Doc. 28–1, ¶ 2) admitted in (Doc. 32). The calls were placed by Defendant's dialing software, which is automated with no manual intervention, or, in other words, which makes calls without a human contemporaneously dialing the number. (Doc. 23, ¶¶ 5 & 8) admitted in (Doc. 29–1, ¶¶ 5 & 8). According to Varun Marwaha, Defendant's senior vice-president of technology, Defendant utilizes a dialer to place calls after employees develop client-specific mapping layouts. (Doc. 28–1, ¶¶ 3–7) admitted in (Doc. 32). When Defendant receives a collection file from a client, the system automatically retrieves the file, loads it into the system, and populates the fields designed for each specific client, including a phone number field. (Doc. 28–1, ¶¶ 6 & 8) admitted in (Doc. 32). Once live agents are logged into the system, files are automatically loaded into the dialer and calls are placed only to those account-holders whose contact information has been entered from the files provided by clients. (Doc. 28–1, ¶ ¶ 11 & 14) admitted in (Doc. 32, ¶¶ 11 & 14). The dialing system is designed to only forward a call to one of Defendant's employees if a call is answered by a live person. (Doc. 23, ¶ 6) admitted in (Doc. 29–1, ¶ 6). During each of the calls to Plaintiff's cellular phone, the call was not forwarded to a human. (Doc. 23, ¶ 7) admitted in (Doc. 29–1, ¶ 7).

Defendant's system cannot randomly or sequentially generate telephone numbers but the system has the capacity to store and dial random and sequential numbers if provided with a list of such numbers which is uploaded into a mapping field specifically design to receive such a list. (Doc. 28–1, ¶¶ 13–15) admitted in (Doc. 32, ¶¶ 1–15).

III. Discussion

Plaintiff moves for summary judgment on count one of the complaint which seeks: (1) $500.00 in damages for each of the three-hundred fifty six (356) phone calls that Defendant placed to Plaintiff's cellular phone using an ATDS in violation of the TCPA, (2) treble damages for willful conduct, and (3) injunctive relief. (Doc. 24, p. 1–2). Defendant contests the motion, through its own summary judgment motion, arguing that Plaintiff's number was provided by a creditor and that it did not use an ATDS as defined by the TCPA because its system “does not have a random or sequential number generator, and thus it cannot store or produce randomly or sequentially generated numbers.” (Doc. 28–2, pp. 6, 15–21, 23–29). Defendant also contends that its system cannot place calls without a human agent's involvement as Plaintiff maintains. (Doc. 28–2, pp. 7, 21–23, 29–31). Defendant believes Plaintiff has failed to produce any evidence demonstrating that its system constitutes a “predictive dialer” as the term is used in the 2003 and 2008 FCC Orders,² and therefore has failed to establish it is an ATDS. (Doc. 28–2, p. 7). Defendant generally argues that Plaintiff cannot demonstrate that the calls were placed as part of a bulk telemarketing campaign or for some unsolicited purpose, which the TCPA was enacted to prevent, but were a result of an unpaid debt. (Doc. 28–2, p. 14).

Initially, with regard to Defendant's general argument that the TCPA was enacted to prevent telemarketing and not debt collections calls, as noted in this Court's June 26, 2014 Memorandum, 2014 WL 2916480, the United States Court of Appeals for the Third Circuit and the Federal Communications Commission (“FCC”) have already determined that the TCPA applies to non-telemarketing calls. See(Doc. 20, pp. 3–4), citing Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 273 (3d Cir.2013) (applying the TCPA to debt collections calls made to a cellular phone); In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; Request of ACA International for Clarification and Declaratory Ruling, 23 FCC Rcd. 559, 564 (January 4, 2008) (applying the TCPA to debt collection calls placed to wireless phones).

As to Defendant's argument that Plaintiff has not established that its system is a “predictive dialer,” it is concluded that Plaintiff has established that Defendant's system is sufficiently similar to those contemplated in the 2003 and 2008 FCC Orders in question, and if those FCC Orders are to be followed, Plaintiff's motion should be granted. It is undisputed that Defendant called Plaintiff's cellular phone for the purposes of collecting a debt three hundred and fifty-six (356) times. The evidence sufficiently establishes the parameters of Defendant's dialing system to permit a determination as to whether the system is an ATDS under the FCC Orders. As noted supra. Defendant's system cannot in its current state randomly or sequentially generate telephone numbers. (Doc. 28–1, ¶¶ 13–15) admitted in (Doc. 32, ¶¶ 11–15). But, the system has the capacity to store and dial random and sequential numbers if provided with a list of such numbers which is uploaded into a mapping field specifically designed to receive such a list. Id.

Under the 2003 FCC Order, the “principal feature of predictive dialing software is a timing function, not number storage or generation,” and the basic function of this technology is “the capacity to dial numbers without human intervention.” In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act, 18 FCC Rcd. 14014, 14091–92, ¶¶ 131 & 132 (June 26, 2003) (emphasis in original). The FCC determined that a “predictive dialer” is within the meaning and definition of an ATDS, holding that “to exclude from these restrictions equipment that use predictive dialing software from the definition of ‘automated telephone dialing equipment’ simply because it relies on a given set of numbers would lead to an unintended result.” Id. at 14092–93, ¶ 133. Further, the human intervention test of the 2003 FCC Order does not inquire as to whether there is human intervention at the entering of a “given set of numbers” or programming of the computer system, but rather if there is human intervention at the time a call is made/placed or when a number is actually dialed. See (Doc. 33, pp. 22–23 n. 12), citing Sterk v. Path, Inc., 46 F.Supp.3d 813, 2014 WL 2443785, 2014 U.S. Dist. LEXIS 7307 (N.D.Ill.2014). The Sterk Court correctly concluded in its interpretation of the 2003 Order that “[i]t is the ultimate calling from the list by the automated equipment that is the violation of the TCPA.” Sterk, 46 F.Supp.3d at 819, 2014 WL 2443785 at *4, 2014 U.S. Dist. LEXIS 73507 at *14–15.

Here, the parties agree there was no human intervention at the time the calls were placed. The calls were made without a human contemporaneously dialing the number as Defendant's dialing software is automated with no manual intervention needed. (Doc. 23, ¶¶ 5 & 8) admitted in (Doc. 29–1, ¶¶ 5 & 8). Defendant's “dialer,” which loads five thousand (5,000) numbers per interval to be called and transferred to available operators upon human contact, is called “Aqrate.” (Doc. 22–6, pp. 8–15). This technology is precisely that contemplated by the FCC in the 2003 and 2008 Orders, a predictive dialer which “calls them at a rate to ensure that when a consumer answers the phone, a sales person is available to take the call,” which was determined by the FCC to be an ATDS. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559, 563 n. 23 (January 4, 2008), citing In re Rules...