Well Ocwen is certainly on a roll. Just weeks after delivering a stellar win on ATDS issues in Keyes, the feisty servicer is at it again, delivering TCPAland its first ATDS ruling out of the state of Florida following ACA Int’l holding that predictive dialers may not be subject to the TCPA after all. Take that Bad Reyes.
In Wilfredo Gonzalez v. Ocwen Loan Servicing, Case No: 5:18-cv-340-Oc-30PRL, Doc. No. 11, (M.D. Fla. Sept. 5, 2018)–found here Gonzalez v OCWEN Loan Servicing— the Court denied Ocwen’s motion to dismiss but only after ruling that predictive dialers are not subject to the TCPA unless they randomly or sequentially generate numbers to be dialed.
As the motion was decided at the pleadings stage, the battle largely turned on the viability of the 2003 and 2008 Predictive Dialer Rulings. The Court addressed the issue directly, acknowledging–almost as if it were reciting from TCPAland.com’s ATDS scorecard–all of the authority coming out both ways on the subject before joining the camp holding that the Predictive Dialer rulings were set aside by ACA Int’l. See Gonzalez at * 11-12. In the Court’s view, the D.C. Circuit “tackled head on the issue of whether it could review the FCC’s interpretation of what devices should be considered ATDSs—regardless of when the FCC first applied the definition.” See Gonzalez at *12. So the Gonzalez analysis tracks perfectly with that applied in the Central District of California decision of Wash. v. Six Continents Hotels, Case No. 2:16-CV-03719-ODW-JEM, 2018 U.S. Dist. LEXIS 145639 (C.D. Cal. Aug. 24, 2018)–at least to that point.
Departing from FCC guidance the Gonzalez Court next turned to whether or not the statutory definition of an ATDS includes predictive dialers. The Court–showing due fidelity to ACA Int’l— finds that the answer is–sometimes “yes” and sometimes “no.” It depends, rather obviously, on whether or not the dialer has the capacity to generate numbers randomly or sequentially, since that is what the statute says See Gonzalez at *12-13. Notably the Court required a “present” capacity to generate and dial such numbers to pass muster. Id.
But case takes an unexpected turn when the court analyzes the sufficiency of the pleadings before it. Rather than require explicit allegations of random or sequential number generation–as was the case in Pinkus— the Court allowed Plaintiff’s case to move forward on the thinnest of allegations. Specifically, the Court held that Plaintiff’s allegations that he heard a pause before hearing a voice during each call were sufficient to state a claim at the pleadings stage. What an unexpected conclusion given all of the hard work the court put in to get there. In the Court’s view, however, the low pleading bar was justified because “here is no way for a plaintiff to know the technological capabilities of the device used to place a call short of a caller admitting the fact presuit or the plaintiff learning that information during discovery.” Gonzalez at * 14.
In a way, therefore, Gonzalez serves as a mere advisory ruling for the parties before it since the ultimate holding is that allegations of a pause before an answer are sufficient to state an ATDS claim. Eesh. Still the case is another valuable data point for ATDS scorecard keepers like me. And so the TCPAland world turns.