Northrup v. Itg Insurance Agency LLC et al

Middle District of Florida, flmd-8:2017-cv-01890

RESPONSE in Opposition re 94 MOTION for summary judgment and incorporated Memorandum filed by John Northrup.

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0 PageID 934 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION JOHN NORTHRUP, Individually and on behalf § of a Class of Similarly Situated Individuals § § Plaintiff, § Civil Action No. 8:17-cv-01890-CEH-JSS § v. § § Innovative Health Insurance Partners, LLC, § CyberX Group, LLC, David E. Lindsey; and § Independent Truckers Group, Inc.; § § Defendants. § PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION The Court should deny Defendants' summary judgment motion because Defendants have failed to conclusively establish that its dialing system does not constitute an Automatic Telephone Dialing System ("ATDS") under binding FCC interpretation of the TCPA statute. Defendants argue that their system does not constitute an ATDS because (1) human intervention is involved in sending the text messages, and (2) it dials a programmed list of phone numbers rather than random phone numbers. Defendants' motion must be denied. First, Defendants misrepresent the amount of human intervention used to send the text messages, and misstate the rate at which the text messages were sent. The type of human intervention used to send the text messages at issue in this case all occurred before the system started sending the text messages. Most cases finding that a dialing system is not an ATDS due to human intervention, focus on the fact that some act of human intervention must occur before each individual number is dialed. By contrast, in the present case, 0 PageID 935 once the system began calling numbers, no human intervention was required to cause the dialing of more than 5000 phone numbers. Second, the definition of ATDS does not exclude systems (like the one used by Defendants) that dial programmed lists of phone numbers instead of random numbers. Accordingly, the Court can find that Defendants' system was an ATDS, or at most that whether Defendants' system is an ATDS is a question for the jury and not suitable for summary judgment. II. DISPUTED MATERIAL FACTS Pursuant to the Court's Order, Dkt. 48, at ¶II (H)(1), Plaintiff contends that there exists a genuine issue for trial with respect to whether the system used to send the text messages constitutes an ATDS (automatic telephone dialing system) under the TCPA. Plaintiff disputes the following facts that Defendants alleged were undisputed: 7. Plaintiff disputes that Pearson altered the order in which the text messages were sent or the content of each text message. 8. Plaintiff disputes that Pearson manually set the system to start sending the text messages at an interval of 1 message per minute; they were sent at an interval of about 55 per minute. 9. Pearson did not manually dial any telephone numbers in the Defendants' 212CRM. Neither Pearson nor any other human manually dialed any telephone number to send the text messages that are the subject of this action. All telephone numbers were automatically dialed by Twilio, following instructions provided by the CyberX CRM. 10. The 212CRM did not instruct Twilio to dial telephone numbers at a specific time. 2 0 PageID 936 They were dialed at a rate of about 55 per minute. 11. Pearson did not determine the content of the text messages at issue. He determined the content of one single text message that was automatically sent by the system more than 5000 times without any of his input. 12. The text messages sent by Twilio did not require separate instructions for each individual text message. A database of phone numbers was uploaded, the content of a text message was drafted once, and the thousands of text messages were sent in bulk, often more than 1 text message per second. Pearson did not submit "instructions" for each text message. He sent one set of instructions for the entire campaign, which was then executed in mass automatically with no human intervention. 14. The 212CRM generated the phone numbers for the text messages dispatched on June 30, 2017 from a FleetSeek database. III. PURPOSE OF THE TCPA A. Unsolicited Text Messages Sent by Machine at the Rate of Thousands Per Hour Are An Unlawful Invasion of Privacy The TCPA is an essential privacy protection law intended to protect consumers from the intrusions of unwanted automated text messages sent by machine to cell phones. Except in the case of an emergency, and with an exception for calls to collect federal government debt, the TCPA permits these calls only if the consumer has given "prior express consent" to receive them. 47 U.S.C. § 227(b)(1)(A)(iii). Defendants here admit that they had no consent to text the class members. (Dkt. 54-3 at ¶30.) In fact, the class members are truck drivers forced by law to disclose their phone numbers to a federal database for safety reasons and Defendants take advantage of that fact to blast them with unwanted text messages. (Dkt. 54 at 7.) 3 0 PageID 937 Defendants claim that these text messages do not fall under the protections of the TCPA, because of "human intervention" in the system used to send these text messages. Without question, Defendants violated the spirit of the law—they blasted thousands of junk marketing text messages per hour to busy truck drivers who had no relationship to Defendants and never consented to this invasion. The issue in this case is whether Defendants also violated the letter of the law, which comes down to the question of whether the automated system used by the Defendants had sufficient "human intervention" to allow Defendants to get around the TCPA. B. The TCPA Must Be Construed to Further Its Consumer Protection Purposes. When it enacted the TCPA, Congress explicitly stated that "federal legislation is necessary to protect the public from automated telephone calls. These calls can be an invasion of privacy, an impediment to interstate commerce, and a disruption to essential public safety services." S. Rep. 102-178, at 5 (1991), reprinted in 1991 U.S.C.C.A.N. 1968, 1972–1973. The TCPA is remedial legislation that is entitled to a liberal construction to protect consumers from the plague of unwanted robocalls. See, e.g., Parchman v. SLM Corp., 896 F.3d 728, 738-739 (6th Cir. 2018); Daubert v. NRA Grp., L.L.C., 861 F.3d 382, 390 (3d Cir. 2017); Van Patten v. Vertical Fitness Grp., 847 F.3d 1037, 1047–48 (9th Cir. 2017). In particular, it should be interpreted "in a manner tending to discourage attempted evasions by wrongdoers." Carlton & Harris Chiropractic, Inc. v. PDR Network, L.L.C., 883 F.3d 459, 474 (4th Cir. 2018). 4 0 PageID 938 IV. DEFENDANTS MISCHARACTERIZE THE TELEPHONE DIALING SYSTEM USED TO SEND THE TEXT MESSAGES TO EXAGGERATE THE HUMAN INTERVENTION INVOLVED A. Defendants misrepresent the rate at which the texts were sent Defendants falsely state, four separate times, that they sent the text messages at an interval of one message per minute. (Dkt. 94 at p. 3, ¶8; p. 11, ¶8; p. 11, fn. 4; p. 19, ¶6.) They argue that this slow rate of sending the messages supports their position that extensive human intervention was involved in sending each text message. Defendants misstate the facts. In fact, CyberX admitted that they used a system that sent text messages at a rate of about one message per second, not one message per minute. (See Exhibit A, Pearson Depo. at 77/19 – 78/23). Additionally, the Call Logs filed in this case demonstrate that the rate of text messages was about fifty-five text messages per minute, rather than one per minute. For example, attached as Exhibit B are two pages from a Call Log filed in this case earlier. (Dkt. 54-5, pages 2-3, PageID 349-350.) They demonstrate (as noted on the attached pages) that 55 text messages were sent on June 30, 2017 during the single minute of 15:28 (i.e., 3:28 pm). Additionally, nine examples are circled where two text messages were sent during the same second. Plaintiff's summary of the Call Logs (Dkt. 54 at 6, summarizing exhibits) shows 5,745 text messages were sent, with 2,888 text messages sent during the 52 minutes between 15:15 and 16:07 (more than 55.5 text messages per minute), and 2,857 texts sent during the 52 minutes between 18:00 and 18:52 (more than 54.9 per minute.) These 5,745 identical text messages sent, during 104 minutes on a single day, were not manually sent by a human; they were sent by an automatic telephone dialing system at a rate of almost one per second. The jury may certainly consider the fact that Defendants' system sent about one text 5 0 PageID 939 message per second (and often 2 text messages in the same second) in determining whether Defendants' system is an Automatic Telephone Dialing System, or whether the degree of human intervention used in the system is such to take Defendants' system outside the definition of an ATDS. B. Defendants exaggerate the amount of human intervention involved in sending the texts Defendants strain credibility when they argue that "nine separate human actions were required to send the texts." (Dkt. 94 at 1.) To the contrary, while a human (Mr. Pearson) certainly had to take certain actions to set up the text campaign, once Pearson clicked "send," the text messages were sent automatically with no human intervention at all. Pearson admitted that once he clicked send, the system delivered the communications, and all he did was monitor it. (Exhibit A, Pearson Depo. at 22/2 – 21.) He did not manually type the text message sent to each person. (Id. at 28/18-21). Pearson was the one who clicked "send" and caused the text messages to be sent, he did not manually dial each number, and knows that no human manually did anything to dial each number, because the system did it automatically. (Id. at 63/12 - 65/21). Defendants are misleading when they state: "Each and every text message sent by the Twilio requires a separate instruction from 212CRM. . ." and the "text messages were sent by 212CRM to Twilio with Pearson's instructions to be separated [sic] executed one-by-one." (Dkt. 94 at p. 3, ¶12, citing Exhibit A at ¶¶7-8.) As explained in Pearson's declaration, 212CRM is not a human being, it is the name of CyberX's software. (Dkt. 94 at 18-19, PageID 864-865.) Accordingly, no human provided any separate or individual instructions for each text message. All human intervention cited by Defendants precedes the actual dialing of numbers and ended when Pearson clicked "send". Once Pearson clicked sent, the dialing system automatically dialed 6 0 PageID 940 the numbers and sent the text messages completely independent of human intervention. The "nine separate human actions" Defendants discuss were all done before the automatic dialing system began to function. The TCPA prohibits "automatic telephone dialing systems", not "automatic telephone pre-dialing systems. These human actions which Defendants describe might be relevant if the events preceding the actual dialing mattered, but they don't. Once the "send" button was clicked, the dialing was completely automatic. Obviously a human must decide what text message he wants to send and what list of phone numbers he wants to target with his advertising campaign. Furthermore, the additional tasks that Pearson performed to prepare the system to begin the text message campaign were not intervention in the process of sending the text messages; they were preparing the system to carry out its function automatically. V. A DIALING SYSTEM FAILS THE DEFINITION OF ATDS ONLY IF A SEPARATE ACT OF HUMAN INTERVENTION IS REQUIRED FOR EACH INDIVIDUAL CALL Some robo-callers and robo-texters have set up systems that actually require a human to click a button to initiate each call or text (either to give the users additional control of the dialing, or just to help help their argument that their system is not an ATDS.) For example, a recent case involved a company selling timeshares using a system where a person referred to as a "clicker agent" had to initiate each individual call by clicking a "Make Call" button. Glasser v. Hilton Grand Vacations Co., LLC, 341 F. Supp. 3d 1305, 1313 (M.D. Fla. 2018). These human clicker agents "control the pace of the calling based on what they observe at their workstations." Id. Two key facts noted by the Glasser court were that three witnesses all agreed that " '(1) no call can ever be placed without human intervention for each and every call;' and (2) 'the system is not capable of dialing from a list of numbers. . .' " Glasser, 341 F. Supp. 3d at 1311. Both of these 7 0 PageID 941 key facts are absent in the present case. Here, no human action is required for each individual text to be sent, and the system is capable of, and does in fact, dial a list of numbers automatically with no human intervention. Similarly, in Jenkins v. Mgage, LLC, the court, in finding that the system was not an ATDS, focused on the fact that "human intervention is required to send each text message. . ." 2016 WL 4263937, 2016 U.S. Dist. LEXIS 106769 at **18-19 (N.D. Ga. Aug. 12, 2016) (emphasis added). The Jenkins court cited focused on the distinction between systems where "human intervention was required to dial the target telephones, not simply to activate the process (by assembling a list of numbers and uploading them to the dialer)." Id. at **19-20 (citing In re Collecto, Inc., No. 14-MD-02513-RGS, 2016 U.S. Dist. LEXIS 16319, 2016 WL 552459 (D. Mass. Feb. 10, 2016). In Collecto, the court concluded: "The short answer is that the FCC's definition of an ATDS is based on the capacity of a dialer to operate without human intervention, and not on whether some act of human agency occurs at some point in the process." Collecto, 2016 U.S. Dist. LEXIS 16319 at *13. The court noted, "As plaintiffs observe, '[e]very ATDS requires some initial act of human agency — be it turning on the machine or pressing 'Go.' It does not follow, however, that every subsequent call the machine dials — or message it sends — is a product of that human intervention." Id. at *13, n.10. The test for whether a system is excluded from the ATDS definition cannot mean any human intervention, because a human is always required to set up a system and turn it on. See, e.g., Blow v. Bijora, Inc., 855 F.3d 793, 802 (7th Cir. 2017). The Ninth Circuit made the same point: We also reject Crunch's argument that a device cannot qualify as an ATDS unless it is fully automatic, meaning that it must operate without any human intervention 8 0 PageID 942 whatsoever. By referring to the relevant device as an "automatic telephone dialing system," Congress made clear that it was targeting equipment that could engage in automatic dialing, rather than equipment that operated without any human oversight or control. 47 U.S.C. § 227(a)(1) (emphasis added); see ACA Int'l, 885 F.3d at 703 ("'[A]uto' in autodialer—or, equivalently, 'automatic' in 'automatic telephone dialing system,' 47 U.S.C. § 227(a)(1)—would seem to envision non- manual dialing of telephone numbers."). Common sense indicates that human intervention of some sort is required before an autodialer can begin making calls, whether turning on the machine or initiating its functions. Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1052-53 (9th Cir. 2018) (emphasis added). In Blow v. Bijora, the Seventh Circuit decided a case very similar to the present case. The dialing platform there—a mass text-messaging system—imported a list of telephone numbers. Then a human had to take action to send a message through the platform. As the court described, "[t]he messages are drafted by humans, who decide when the message will be sent, and press a button to either send the messages or schedule a future sending." Blow, 855 F.3d at 801. The court held that the system was an ATDS, because "human involvement is in fact unnecessary at the precise point of action barred by the TCPA: using technology to 'push' the texts to an aggregator that sends the messages out simultaneously to hundreds or thousands of cell phone users at a predetermined date or time." Id. at 802. Here, as in Blow, a human presses a button (or, more accurately, clicks on a screen), but the result is only that the call is pushed out to a dialer that automatically dials the calls. See also Gaza v. LTD Fin. Services, L.P., 2015 WL 5009741, 2015 U.S. Dist. LEXIS 111751 at *2 (M.D. Fla. Aug. 24, 2015) (granting summary judgment in favor of defendant because "the agent pulled up the subject account from a database and then used his mouse to manually click on the phone number associated with the account to launch the call"). Plaintiff concedes that some courts have been swayed by evidence regarding acts of "human intervention" required to set up an automatic dialing system. However, the better 9 0 PageID 943 reasoned decisions hold that a dialing system is an ATDS when no human intervention is required once the person clicks "start." VI. A TELEPHONE DIALING SYSTEM THAT DIALS A PRE-PROGRAMMED LIST OF PHONE NUMBERS RATHER THAN RANDOM NUMBERS MAY STILL BE AN ATDS Defendants misleadingly state that "all three Federal Circuit Courts to consider the issue have found that the current capacity question controls." (Dkt. 94 at 7, citing King v. Time Warner Cable, Inc., 894 F.3d 473 (2d Cir. 2018); Dominguez v. Yahoo, Inc., 894 F.3d 116, 121 (3d Cir. 2018); and Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1050 (9th Cir. 2018). To the contrary, the issue here is whether a dialing system must have the current capacity to dial random numbers or whether it is sufficient for the dialing system to have the capacity to dial numbers from a programmed list. On this issue, there is a split—the Third Circuit's Dominguez opinion supports Defendants, the Second Circuit's King opinion did not reach the issue, and the Ninth Circuit's Marks opinion supports Plaintiffs. In fact the Ninth Circuit's Marks opinion expressly rejected the Third Circuit's Dominguez opinion. Therefore, we decline to follow the Third Circuit's unreasoned assumption that a device must be able to generate random or sequential numbers in order to qualify as an ATDS. Dominguez ex rel. Himself v. Yahoo, Inc., 894 F.3d 116, 120 (3d Cir. 2018) (stating, without explanation, that the plaintiff's claims against Yahoo failed because he "cannot point to any evidence that creates a genuine dispute of fact as to whether [Yahoo's device] had the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers"). In making this assumption, the Third Circuit failed to resolve the linguistic problem it identified in an unpublished opinion in the same case, where it acknowledged that "it is unclear how a number can be stored (as opposed to produced) using 'a random or sequential number generator.'" Dominguez v. Yahoo, Inc., 629 F. App'x 369, 372 n.1 (3d Cir. 2015). Because the Third Circuit merely avoided the interpretive questions raised by the statutory definition of ATDS, its published opinion is unpersuasive. 10 0 PageID 944 Marks, 904 F.3d at 1052 n.8. The Marks court "conclude[d] that the statutory definition of ATDS is not limited to devices with the capacity to call numbers produced by a 'random or sequential number generator,' but also includes devices with the capacity to dial stored numbers automatically." Id. at 1052. The Second Circuit's King decision noted that the underlying district court stated that whether the defendant "dialed King's number randomly or from a list is irrelevant," and remanded the case to the district court so that question could be answered. King, 894 F.3d at 481. Defendants' argument that the March 2018 ACA International opinion, from the D.C. Circuit, overruled all FCC Orders about the definition of an ATDS was rejected in a detailed 2018 opinion from the Southern District of Florida. Reyes v. BCA Fin. Servs., No. 16-24077- CIV, 2018 U.S. Dist. LEXIS 80690 (S.D. Fla. May 14, 2018), motion to certify appeal denied, 2018 WL 2849768 (S.D. Fla. June 8, 2018). The Reyes Court explained that the D.C. Circuit, in ACA, did not overrule the FCC's interpretation that a device can qualify as an ATDS even if it places calls or texts to a list of numbers rather than random numbers, but rather criticized the FCC's confusing and seemingly contradictory interpretations: So which is it: does a device qualify as an ATDS only if it can generate random or sequential numbers to be dialed, or can it so qualify even if it lacks that capacity? The 2015 ruling, while speaking to the question in several ways, gives no clear answer (and in fact seems to give both answers). It might be permissible for the Commission to adopt either interpretation. But the Commission cannot, consistent with reasoned decisionmaking, espouse both competing interpretations in the same order. ACA International v. Federal Communications Commission, 885 F.3d 687, 702-03 (D.C. Cir. 2018) (quoted in Reyes, 2018 U.S. Dist. LEXIS 80690, at *26.) The Reyes court first explained 11 0 PageID 945 the reasoning in the FCC's 2003 Order. [A]lthough "[i]n the past, telemarketers may have used dialing equipment to create and dial 10-digit telephone numbers arbitrarily," since then "the evolution of the teleservices industry has progressed to the point where using lists of numbers is far more cost effective." 18 FCC Rcd. at 14092. And yet "[t]he basic function of such equipment. . . has not changed—the capacity to dial numbers without human intervention." Id. The FCC further reasoned 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. Reyes at **15-16 (emphasis added, citing In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 18 F.C.C.R. 14,014, 14,093 (2003)). The Reyes court then described a 2008 FCC Order rejecting a petitioner's argument that "a predictive dialer meets the definition of autodialer only when it randomly or sequentially generates telephone numbers, not when it dials numbers from customer telephone lists." Id. at *17 (citing In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 FCC Rcd. 559, 566 (2008). The Reyes court then discussed the 2012 FCC Order, which reiterated that the TCPA's definition of an ATDS "covers any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists." Id. (emphasis added, citing In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 15391, 15399 (2012).) The FCC then entered another order in 2015, which was reversed. However, the reversal of the 2015 FCC Order, did not (and could not have) reversed the 2003, 2008, and 2012 FCC Orders. The 2003, 2008 and 2012 FCC Orders support Plaintiff's position in this case, and they are binding and must be enforced by this Court. "The Eleventh Circuit has unequivocally held 12 0 PageID 946 that final FCC orders are binding on district courts and that district courts 'may not determine the validity of FCC orders, including by refusing to enforce an FCC interpretation.'" Reyes, 2018 U.S. Dist. LEXIS 80690, at *17 (citing Murphy v. DCI Biologicals Orlando, LLC, 797 F.3d 1302, 1307 (11th Cir. 2015). Reyes noted that a Nevada case relied on ACA "to find that a predictive dialer is not an ATDS." Reyes at *27 (citing Marshall v. CBE Grp., Inc., No. 2:16-cv-02406, 2018 U.S. Dist. LEXIS 55223, 2018 WL 1567852, at **4-8 (D. Nev. Mar. 30, 2018). However, the key fact in Marshall was that the defendant "used a manual clicker application or 'MCA' in conjunction with a predictive dialer." Id. at *28. The Reyes court found that the defendant's use of an MCA was key in the Marshall decision, as it was in Strauss v. CBE Grp., Inc., 173 F. Supp. 3d 1302 (S.D. Fla. 2016). The Marshall Court. . . emphasized the significance of the 'human intervention' element to the ATDS analysis." Id. [2018 U.S. Dist. LEXIS 55223 at *18, [WL] at *5]. And on that front, the Marshall Court found "that the overwhelming weight of authority applying this element hold that 'point-and-click' dialing systems, paired with a cloud-based pass-through services, do not constitute an ATDS as a matter of law in light of the clicker agent's human intervention." Id. (citing, inter alia, Strauss, 173 F. Supp. 3d at 1310-11). [I]t is fair to say that before the 2015 FCC Order and the ACA International ruling, the Noble predictive dialer, as used by BCA Financial, is an ATDS as a matter of law. The FCC has consistently held that predictive dialers constitute ATDSs, their basic function being that they can dial persons without human intervention regardless of whether called numbers are generated randomly or sequentially or from a set list. The Eleventh Circuit has held that final FCC orders are binding on this Court, thus barring me from "refusing to enforce an FCC interpretation." Murphy, 797 F.3d at 1307; see also Mais, 768 F.3d at 1114. Based on that binding authority, other judges have found that predictive dialers constitute ATDSs, including the Noble predictive dialer at issue here. See, e.g., Strauss, 173 F. Supp. 3d at 1309. Reyes at *29. The Reyes Court found that the dialing system at issue was an ATDS because it did 13 0 PageID 947 not include human intervention. In this case, it is undisputed that the Noble dialing system is a "predictive dialer." . . . And it is also undisputed that, regardless of how the numbers it dials are teed up, the Noble predictive dialer, as BCA Financial uses it, "automatically dials telephone numbers without human intervention." . . . Thus, binding authority would compel me to find that the Noble predictive dialer is an ATDS. And I would have to reach that conclusion regardless of whether I agree with the FCC interpretation of the TCPA's statutory language. Reyes at *29-30. The Reyes Court provided a thorough analysis of ACA. Because this is the exact issue before the Court, Plaintiff cites large portions of the opinion below. The ACA International appeal was a consolidated appeal from several Circuits, so its decision is binding here. Id. Still, BCA Financial reads too much into ACA International when it concludes that the prior FCC orders can no longer be relied upon. The Court rejects that argument for several reasons. First, nowhere in the D.C. Circuit's opinion are the prior FCC orders overruled. Indeed, that would have been impossible given that the time to appeal those orders had long passed. And when addressing those prior orders, the D.C. Circuit merely said that it had jurisdiction to address the recent pronouncements and clarifications issued in 2015, not whether the 2003 and 2008 orders remained valid. Second, when the D.C. Circuit said that the FCC had provided too expansive an interpretation of the TCPA, the D.C. Circuit was not referring to the prior or recent rulings equating predictive dialers to ATDSs. Rather, the D.C. Circuit was referring to the FCC's interpretation of the TCPA as encompassing devices that have both the present and future capacity to acts as ATDSs. That future—or potential—capacity interpretation was problematic because it had "the apparent effect of embracing any and all smartphones" given that "essentially any smartphone, with the addition of software, can gain the statutorily enumerated features of an autodialer and thus function as an ATDS." ACA Int'l, 885 F.3d at 696. In this case, however, there is no issue concerning the Noble predictive dialer's present versus future capacity. Although BCA Financial disputes that the Noble predictive dialer is an ATDS, the issue is not whether BCA Financial may later convert it into an ATDS. That is not Reyes' theory of liability. Rather, it is that the Noble predictive dialer is an ATDS as currently configured and utilized. Therefore, the 2015 FCC order concerning present versus future capacity would not have had an impact in this case anyway, let alone ACA International's 14 0 PageID 948 decision concerning that issue. Third, although ACA International's rulings concerning a device's ability to generate random or sequential numbers and the need for human intervention hit closer to home, they still do not warrant denial of summary judgment in this case. To understand why, one must focus on not just what ACA International did but on what it did not do. Specifically, what ACA International did was to reject the FCC's have-your-cake- and-eat-it-too approach to the questions before it. The FCC was of "two minds on the issue" of whether "a device must be able to generate and dial random or sequential numbers to meet the TCPA's definition of an autodialer," or whether "that equipment can meet the statutory definition even if it lacks that capacity." Id. at 701-02. The FCC answered "yes" and "yes," i.e., it must have that ability and it may lack that ability, two conflicting answers that the D.C. Circuit could not accept because it provided no meaningful guidance. But what ACA International did not do is endorse one interpretation over the other, even implicitly. ACA International did not say that a predictive dialer, or any other type of device, must be able to generate and dial random or sequential numbers to meet the TCPA's definition of an autodialer. Nor did it say that a predictive dialer, or any other type of device, may lack that capacity. In fact, the D.C. Circuit said that "[i]t might be permissible for the Commission to adopt either interpretation." ACA Int'l, 885 F.3d at 703 (emphasis added). But what the FCC could not do was "espouse both competing interpretations in the same order." Id. In this case, BCA Financial is essentially urging the Court to adopt the first interpretation -- i.e., that a predictive dialer must be able to generate and dial random or sequential numbers to be an ATDS -- based on ACA International's authority. But ACA International does not compel that conclusion because it did not adopt that interpretation. At best, ACA International arguably calls into doubt the FCC's previous broad statements that predictive dialers are ATDSs regardless of whether they call randomly or from a sequential list or a set list of numbers. But perhaps not, given that the D.C. Circuit did not adopt one interpretation over the other. In any event, as already explained, absent an express rejection of the prior FCC orders, the Court cannot deviate from them and impose my own interpretation of the TCPA. Concerning the human-intervention issue, the D.C. Circuit's rulings on that issue are of even lesser consequence. BCA Financial does not dispute that its Noble predictive dialer "automatically dials telephone numbers without human intervention." [ECF Nos. 86-1, p. 5; 93, p. 6 (emphasis added)]. Therefore, it is of no moment in this case whether a device may still qualify as an ATDS "even if it 15 0 PageID 949 cannot dial numbers without human intervention," which is what the FCC refused to clarify. ACA Int'l, 885 F.3d at 703. In addition, the Court does not find that Marshall warrants a different result. The Marshall Court did not squarely address whether the 2003 FCC Order remained binding. See Marshall, 2018 U.S. Dist. LEXIS 55223, 2018 WL 1567852, at *7. Instead, it reasoned that, even if it remained binding, the plaintiff would still lose because "the overwhelming weight of authority" that looked at point-and-click systems before ACA International found "that 'point-and-click' dialing systems, paired with a cloud-based pass-through services, do not constitute an ATDS as a matter of law in light of the clicker agent's human intervention." Id. (citing, inter alia, Strauss, 173 F. Supp. 3d at 1310-11). Other district courts have indeed refused to equate predictive dialers to ATDSs where there was human intervention present in the making of calls, particularly through the use of point-and-click systems. See Manuel v. NRA Grp., LLC, 200 F. Supp. 3d 495, 501-02 (M.D. Pa. 2016), aff'd, 2018 U.S. App. LEXIS 816, 2018 WL 388622 (3d Cir. Jan. 12, 2018) (explaining that "'[p]oint and click' systems requiring users to manually initiate each call uniformly necessitate human involvement," while "dialers with the capacity to initiate multifarious calls prospectively, before agents become available, fall within the ambit of the [TCPA]," and then holding that the predictive dialer at issue was an ATDS because "uncontroverted evidence establishes that [it] is capable of placing calls without human intervention"); Estrella v. LTD Fin. Servs., LP, No. 8:14-CV- 2624-T-27AEP, 2015 U.S. Dist. LEXIS 148249, 2015 WL 6742062, at *3 (M.D. Fla. Nov. 2, 2015) (granting summary judgment in the defendant's favor where there was "no evidence that Defendant used. . . predictive dialing systems to place calls to Plaintiff[']s cellular phone," but instead, "the evidence demonstrates, at most, that the calls were placed manually with the use of human intervention through a 'point and click function'"); see also Wilcox v. Green Tree Servicing, LLC, No. 8:14-CV-1681-T-24, 2015 U.S. Dist. LEXIS 58667, 2015 WL 2092671, at *5 (M.D. Fla. May 5, 2015) (denying summary judgment seeking to hold predictive dialer as an ATDS because "[t]he evidence before the Court is somewhat vague regarding how the phone calls are initiated," explaining that "[i]f the agent selects the number to be called, then the call would be made as a result of human intervention, and the call would not be made using an ATDS."). The human element present in Marshall readily distinguishes that case from the present case. Here, BCA Financial has presented no facts or evidence that it used a manual-clicker application or point-and-click function or similar human- intermediary utility before placing a call using the Noble predictive dialer. Quite the opposite, BCA Financial admits that "the Noble dialer, as Defendant uses it, automatically dials telephone numbers without human intervention." [ECF Nos. 86-1, p. 5; 93, p. 6 (emphasis added)]. 16 0 PageID 950 In sum, the Court grants summary judgment in Reyes' favor on the ATDS issue, finding that the Noble predictive dialer, as used by BCA Financial, was an ATDS as a matter of law. Reyes at ** 32-39. See also Jiminez v. Credit One Bank, N.A., No. 17 CV 2844-LTS-JLC, 2019 U.S. Dist. LEXIS 53096, at *15 (S.D.N.Y. Mar. 28, 2019) (noting the split in authorities, and agreeing with Reyes that ACA International does not invalidate the FCC's prior rulings on the definition of an ATDS.) Similarly, in Maddox v. CBE Grp., Inc., No. 1:17-CV-1909-SCJ, 2018 U.S. Dist. LEXIS 88568, at *8 (N.D. Ga. May 22, 2018), the Court held that the D.C. Circuit's ACA decision only overruled the FCC's 2015 ruling, and that the FCC's 2003 ruling (that a system can qualify as an ATDS even if it does not "create and dial 10-digit telephone numbers arbitrarily" but rather "relies on a given set of [phone] numbers") remains binding law that the Court is obligated to follow. Id. (citing In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14092 (2003), and Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 1119-21 (11th Cir. 2014). The court noted that it was the 2015 "eye-popping" ruling (under which any smart phone could be considered an ATDS because the focus was on potential future abilities of a device) that was overruled by ACA, and that the 2003 ruling remained binding law. Id. at *9. The court thus "relie[d] on the FCC's 2003 interpretation" of the statute, which focused only on whether a system could dial numbers without human intervention. Id. at *10. A growing majority of courts have agreed with this approach. See, e.g., Swaney v. Regions Bank, No. 2:13-cv-00544, 2018 U.S. Dist. LEXIS 85217, at *3, 2018 WL 2316452, at *1 (N.D. Ala. May 22, 2018) ("In its 2003 Order, the FCC concluded that the defining 17 0 PageID 951 characteristic of an ATDS is 'the capacity to dial numbers without human intervention.' In light of ACA International, that proposition still stands.") (internal citation omitted); O'Shea v. Am. Solar Sol., Inc., No. 3:14-cv-00894, 2018 U.S. Dist. LEXIS 110402, at *5, 2018 WL 3217735, at *2 (S.D. Cal. July 2, 2018) ("The ACA decision left intact the holding of both the FCC's 2003 and 2008 Order that an autodialer is an ATDS."); Pieterson v. Wells Fargo Bank, N.A., No. 17- cv-02306, 2018 U.S. Dist. LEXIS 113125, at *9, 2018 WL 3241069, at *3 (N.D. Cal. July 2, 2018) ("As several other courts have recently observed, ACA Int'l vacated the 2015 Declaratory Ruling but it did not clearly intend to disturb the FCC's 2003 and 2008 orders."); Ammons v. Ally Fin., Inc., No. 3:17-cv-00505, 2018 U.S. Dist. LEXIS 108588, at *17, 2018 WL 3134619, at *6 (M.D. Tenn. June 27, 2018) ("In the wake of ACA International, this Court joins the growing number of other courts that continue to rely on the interpretation of § 227(a)(1) set forth in prior FCC rulings.") Accordingly, the FCC's 2003 and 2008 orders, along with the case law interpreting those rulings, continue to govern the outcome here, and Defendants cannot escape a finding that they used an ATDS because their system called a targeted list rather than random or sequential numbers. Because the current law does not disqualify a dialing systems from being an ATDS when it utilizes a list of phone numbers, rather than random or sequential numbers, and because Defendants' system did not require human intervention to make the calls, the Court should either enter an order finding that Defendant's dialing system is an ATDS, as was done in Reyes, or deny Defendants' request that for a summary judgment finding that its system is not an ATDS, and leave the issue for the jury to decide. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 18 0 PageID 952 951 (9th Cir. 2009) (reversing district court's grant of summary judgment based on "genuine issue[s] of material fact whether this telephone system has the request capacity to be considered an ATDS under the TCPA"); and Sherman v. Yahoo! Inc., 150 F. Supp. 3d 1213, 1217 (S.D. Cal. 2015) (denying summary judgment because "[a] reasonable jury could conclude that the Welcome text is produced and sent by an ATDS as the term is defined in the TCPA"). VII. CONCLUSION Defendants in this case caused thousands of identical text messages to be automatically sent to thousands of unwilling truck drivers at rate of about one per second without any human intervention after Mr. Pearson clicked "Start." This is exactly the type of activity that Congress meant to address and limit through the consumer protections of the TCPA by requiring those callers to have prior express consent for the calls. Defendants' misstatements about the rate at which the texts were sent, and exaggerations regarding the human intervention involved in sending the texts cannot allow them to evade the statute. WHEREFORE Plaintiff prays that the Court deny Defendants' Motion for Summary Judgment, and enter an order either finding that Defendants' dialing system was an ATDS, or that it is a question for the jury. Date: April 5, 2019. Respectfully submitted, /s/ Cory S. Fein Cory S. Fein (Pro Hac Vice) E-mail: CORY FEIN LAW FIRM 712 Main St., #800 Houston, TX 77002 Telephone: (281) 254-7717 Facsimile: (530) 748-0601 19 0 PageID 953 Seth M. Lehrman (Fla. Bar No. 132896) E-mail: EDWARDS POTTINGER LLC 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Telephone: (954) 524-2820 Facsimile: (954) 524-2822 Attorneys for Plaintiff 20