In Hunt v. 21st Mortg. Corp., 2014 WL 426275 (N.D.Ala. 2014), Judge Acker struck Plaintiff’s TCPA ATDS Expert  Robert Biggerstaff as being incompetent on the subject of whether Defendant used an ATDS.  However, Judge Acker found a factual questions nevertheless on whether a ATDS was used.

In its Opinion and Order of September 17, 2013 (Doc. 31), this court joined the Ninth Circuit and a slew of district courts in holding that the liability question under the statute is whether telephone equipment used to place a call could possibly be used to store or produce numbers to be called using a random or sequential number generator, not whether the equipment was actually used in such a way to place the call or calls at issue. See id. at 6–10 (citing, e.g., Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir.2009)). However, the court pointed out that this definition logically must have some outer limit. Virtually every telephone in existence, given a team of sophisticated engineers working doggedly to modify it, could possibly store or produce numbers using a random or sequential number generator. Furthermore, given the vast proliferation in recent years of smartphones with computer operating systems, many personal, non-commercial telephones could in all likelihood achieve automatic dialing capability by simply downloading an “app.” The TCPA surely does not mean to define every telephone as an automatic dialing system, and does not subject every call made to a cell phone to liability by the caller. With this in mind, the court held that a telephone system is only covered by the statute if, at the time the calls at issue were made, the system had the capacity, without substantial modification, to store or produce numbers using a random or sequential number generator. See id. at 9–10. But what constitutes “substantial modification”? Is this a fact question or a legal question?  The parties agree that the actual telephone system used to call Mr. Hunt’s cell phone in this case was the Nortel Meridian Telephone System, Def.’s Facts ¶ 18; Pl.’s Opp’n at 18, and they appear to agree that the system would have automatic dialing capability if, but only if, certain software were installed. Unfortunately, the evidence offered by both parties concerning whether the software was in fact installed or could have easily been installed is wiggly and waffly. Plaintiff relies on expert testimony that has been excluded. See Pl.’s Opp’n at 21. Defendant, on the other hand, relies entirely on the conclusory, self-interested testimony of its own employees. See Def.’s Facts ¶¶ 18–23. And whatever criticism a fact-finder may have of defendant’s self-interested testimony is enhanced by the fact that defendant dismantled its system and replaced it with a new system while the lawsuit of Ms. Hunt, plaintiff’s wife, was pending and the changes were arguably in response to that suit which was settled. See Collins Dep. of August 7, 2013, ECF No. 29–1, at 17–19. Furthermore, the dismantled system has not been recreated so it cannot be examined as it existed while the complained of phone calls were being made. Thus, there is and can be no opportunity at this junction to see the system in action, fully updated with whatever software defendant chose to install.   In light of these evidentiary shortcomings, both plaintiff and defendant have come to the conclusion that they win by default. See Pl.’s Opp’n at 31–32 (“[A]t least, [d]efendant should be estopped from asserting its former telephone system was not an automatic telephone dialing system due to its destruction and concealment of crucial evidence.”); Def.’s Opp’n at 13 (“The relevant, admissible, undisputed evidence is clear—21st Mtg. did not have an ‘automatic telephone dialing system’ ….”). The court declines to adopt either fatalistic approach. Instead, it concludes that the proper application of the statute can only be made by deciding questions of credibility and making reasonable deductions from the totality of circumstances. The dispositive question, then, is whether defendant’s employees are to be believed when they say that the Nortel system, while up and running at the time defendant made calls to plaintiff’s cell phone, did not contain and could not be modified to contain automatic dialing software, or whether there will emerge legitimate doubt about defendant’s defense after its witnesses are tested by cross-examination and by the surrounding circumstantial evidence. Of course there can only be a verdict in favor of plaintiff in the event the court should deny defendant’s anticipated motion pursuant to Rule 50(a), F.R. Civ. P. When that motion is assuredly filed, the court will have heard all of the evidence.  The making of credibility determinations is, of course, the exclusive domain of the jury,     Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”), and for that reason both parties’ summary judgment motions will be denied as to the TCPA claim.