In many TCPA cases, the sufficiency of a plaintiff’s allegations, particularly those concerning the defendant’s alleged use of an automatic telephone dialing system (“ATDS”), are tested at the pleadings stage through a motion to dismiss. No matter which side prevails, a trial court’s ruling at that procedural moment is limited to whether ATDS allegations are plausible—not whether any evidence actually proves that an ATDS was, in fact, used. And because so many lawsuits are resolved through an early settlement, a defendant often does not have a day in court on the question of whether its dialing equipment as configured and used constitutes an ATDS.

In the (relatively) rare circumstance where a TCPA case moves beyond the pleadings, proceeds through the close of discovery, does not settle, and is decided on the merits through a motion for summary judgment (or, perhaps, a trial), the court can make an evidence-based determination as to the defendant’s equipment and decide, with some measure of finality, whether it is an ATDS. Fortunately for the defendant in Brown v. Ocwen Loan Servicing LLC, No. 8:18-136-T-60, 2019 WL 4221718 (M.D. Fla. Sept. 5, 2019) (available here), the U.S. District Court for the Middle District of Florida has done just that.

In Brown, husband-and-wife plaintiffs claimed that mortgage servicer Ocwen Loan Servicing LLC had violated the TCPA by calling them using (1) an ATDS and (2) an artificial or prerecorded voice. Both sides filed cross-motions for summary judgment. Ocwen, for its part, argued it had not used an ATDS. It also claimed it had not used an artificial or prerecorded voice (with the exception of four calls), and otherwise asserted that it nevertheless had consent (and that any alleged revocation of consent by plaintiffs was insufficient).

Although the district court largely denied the cross-motions—there were genuine issues of fact as to the number of prerecorded or artificial voice calls, and whether and to what extent plaintiffs’ gave consent (or revoked it)—the Brown decision is notable because the court granted summary judgment on the ATDS issue, finding that Ocwen’s dialing equipment did not satisfy the statutory definition as interpreted by the D.C. Circuit in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018).

Initially, the court summarized the undisputed evidence regarding Ocwen’s dialing equipment and calling practices:

Ocwen stores its borrowers’ data in a program called “RealServicing Loan Platform.” Within this program, Ocwen identifies certain borrowers – for example, those who are in default or eligible for loan modifications – and creates a call list. This call list is transferred from RealServicing to a software called “Advanced List Management” (ALM), which is created by Aspect Software, Inc. Using ALM, Ocwen representatives configure how calls are to be placed to the numbers on the call list. Next, Ocwen transfers that call list with its dialing rules from ALM to another software created by Aspect, “Unified IP” (UIP). Then, UIP begins dialing Ocwen’s borrowers using the call list. . . . Although ALM and UIP are separate software, together they are referred to as the “Aspect dialer.”

Brown, 2019 WL 4221718, at *1 (citations omitted). Then, reviewing this evidence, the court reasoned as follows:

According to Ocwen, following the D.C. Circuit’s decision in [ACA International], a dialing system must have the present ability to generate random or sequential numbers to meet the definition of an ATDS. . . .

In support, Ocwen relies on Gonzalez v. Ocwen Loan Servicing, LLC, which held “the definition of an ATDS would not include a predictive dialer that lacks the capacity to generate random or sequential telephone numbers and dial them; but it would include a predictive dialer that has that capacity.” No. 5:18-cv-340-Oc-30PRL, 2018 WL 4217065, at *6 (M.D. Fla. Sept. 5, 2018). The court in Gonzalez also explained that “a device [has] the capacity to generate random or sequential telephone numbers only if the device has the ‘present ability’ to do so.” Id. (citing ACA Int’l, 885 F.3d at 695-97). Ocwen explains its Aspect dialer is not capable of generating and dialing random or sequential numbers. . . . Having independently considered the issue, the Court agrees with Gonzalez and concludes Ocwen’s Aspect dialer is not an ATDS under the TCPA.

Brown, 2019 WL 4221718, at *4.

While the Brown court’s decision and reasoning are fact-specific and tethered to both the functionalities of the Aspect dialer as well as Ocwen’s specific calling practices, the opinion is still helpful, at least within the Eleventh Circuit, for its description of the ATDS definition post-ACA International and for its confirmation that a defendant’s dialing equipment must have the requisite present capacity to constitute an ATDS. At least until the FCC issues its long-anticipated ruling on this subject, litigants can look to Brown for guidance.