As soon as I posted the updated ATDS scorecard you knew it was bound to happen. And it did. A new monstrous ATDS decision. This one even more daring than the rest.
In Heard v. Nationstar Mortg. Llc, Case No.: 2:16-cv-00694-MHH, 2018 U.S. Dist. LEXIS 143175 (N.D. Ala. Aug. 23, 2018) the Court held that an Avaya predictive dialer met the statutory definition of an ATDS even if the FCC’s 2003 and 2008 Predictive Dialer Rulings were overruled by ACA Int’l. And all of TCPAland shuddered.
The ruling does however confirm that “parties may contract to limit the means of revoking consent” –so that’s another ruling in the Good Reyes camp–the Defendant failed to show that any such contractual consent provision existed in the first place. *Insert foghorn sound here*
Getting to it. Heard is the first post ACA Int’l predictive dialer case to entirely disregard the question of whether ACA Int’l overturned those rulings. In a footnote the Court states:
In a series of supplemental authority filings, Nationstar argued that the ACAInternational decision set aside not only the FCC’s 2015 ruling but also the FCC’s 2003 and 2008 rulings on which the 2015 ruling was based. The Court has read and considered the decision in ACA International. Because the Court does not rely on the FCC’s guidance in it analysis below, the Court denies Nationstar’s motion for supplemental briefing as moot.
Heard at *14, n 2.
Zooming in on the word “store” in the statutory definition–but ignoring the word “random or sequential number generator”–the Court queries whether Nationstar’s system stores numbers. Nationstar argues it doesn’t for some reason. That doesn’t really get it very far since a predictive dialer obviously needs a list derived from somewhere in order to place calls. The Court dismisses the argument with one line: “The uploaded information is stored on Nationstar’s dialing system until it is removed.” And as the Court puts it: “the statute does not require that the automatic dialer be the primary or permanent storage location for caller information.” So “the end” on the storage piece.
But so what? Nationstar correctly points the Court to the key language in the statutory definition respecting the use of a random or sequential number generator, which should carry the day. But it doesn’t. Instead the Court focuses on the fact that debt collectors never use random or sequential number generators so the TCPA would never apply to debt collection calls if Nationstar’s formulation of an ATDS was adopted. (Which is of course both true and exactly what Congress intended when the TCPA was enacted–just look at the legislative history). Rather than conclude–as it c(sh?)ould have–that Nationstar is, therefore, not subject to the TCPA the Court went exactly the opposite direction and concluded that dialing from a list must mean usage of an ATDS.
The Court was also unmoved by Nationstar’s showing of “human intervention”–which actually looked a lot more robust than in the recent Ramos case–further underscoring how difficult it is to confidently determine whether a dialer is or is not subject to the TCPA. For instance, Nationstar demonstrated that the system is limited by daily inputs and multiple layers of log in requirements before calls can be launched. Yet the automatic fashion by which numbers are sequenced to be dialed is allthe eye of this court beheld in concluding the human intervention was insufficient to remove the calls from TCPA coverage.
Notably, the Court shrugs off concerns that the predictive dialer system used by Nationstar might not actually fit within the statutory definition that the court just found it actually fit within:
“Although the language Congress enacted in the TCPA may not anticipate and expressly address each new innovation in the telecommunications field, defendants should not be able to circumvent the TCPA’s prohibitions simply by disaggregating the functions of an automatic dialer into nominally separate, but functionally complimentary systems.”
Heard at *19.
These days truth isn’t really truth and statutory definitions aren’t really definitions.
Word to the wise: following Heard and Swaney the N.D. Alabama is probably not the best location for Defendants to litigate ATDS issues. Just saying.