In Abanta Rooter and Plumbing, Inc., v. Alarm.com, Inc., 2018 WL 3707283, at *6–7 (N.D.Cal., 2018), Judge Gonzalez-Rogers denied all parties’ motions for summary judgment as to what constituted an ATDS.
The record indicates that Nationwide, Alliance’s purported agent, used the Ytel Dialer to place calls to the cell phones of members of the Cell Phone Class. (Terrell Decl., Ex. 27 at 18:17– 18:19.) The Ytel Dialer provides “several types of automatic telephone dialing software services, including predictive dialing, power dialing, progressive dialing and preview dialing services[,]” as well as campaign and telephone list management functions. (Jaszczuk Decl., Ex. 20 at ¶ 42.) Ytel’s Master Service Agreement confirms that the system includes “predictive dialing technology.” (Id. at ¶ 43.) Nationwide’s CEO, Joseph Moretti, testified that Nationwide used the Ytel Dialer in both manual and automatic dialing modes and confirmed that when calls were placed while using the automatic dialing mode, the Ytel Dialer would locate an available call center employee, and then “beep” to signal to that employee that they should answer the call. (Terrell Decl., Ex. 27 at 20:19–22:13.) Alarm.com argues that the D.C. Circuit’s decision in ACA International invalidates the FCC orders upon which plaintiffs’ experts relied in determining that the Ytel Dialer “has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, or form a list or database of numbers, and to dial such numbers without human intervention.” (Alarm.com MSJ at 22 (citing Jaszczuk Decl., Ex. 20 at ¶ 62).) Specifically, Alarm.com argues that in vacating the 2015 FCC Order, the D.C. Circuit limited the definition of an ATDS to that described by the statute and excludes any device which lacks the capacity to store or produce numbers using a random or sequential number generator, even if that device “has the capacity to store or produce telephone numbers to be called…from a list or database of numbers” and “dial such numbers without human intervention.” (Id.) Alarm.com does not persuade. First, ACA International invalidated only the 2015 FCC Order—the court discusses but does not rule on the validity of the 2003 FCC Order or the 2008 FCC Order. See ACA International, 885 F.3d at 703; see also Reyes v. BCA Financial Services, Inc., 2018 WL 2220417, at *11 (S.D. Fla. May 14, 2018) (finding that both the 2003 and the 2008 FCC Opinions remain valid following ACA International); Swaney v. Regions Bank, 2018 WL 2316452, at *1 (N.D. Ala. May 22, 2018). Furthermore, the Ninth Circuit’s interpretation of the 2008 FCC Order, in which the Court held that “predictive dialers fall squarely within the FCC’s definition of ‘automatic telephone dialing system’,” remains valid and binding precedent. See Meyer, 707 F.3d at 1043. Second, the court in ACA International suggests that including a Predictive Dialer in the definition of an ATDS is a permissible interpretation of the statutory language in the TCPA. In holding that the 2015 FCC Order “espouse[s] both competing interpretations in the same order[,]” and therefore “fails to satisfy the requirement of reasoned decisionmaking,” the court noted that with respect to “whether a device must itself have the ability to generate random or sequential telephone numbers to be dialed[,] or is it enough if the device can call from a database of telephone numbers generated elsewhere[,]” it “might be permissible for the Commission to adopt either interpretation.” Id. at 701-03. Finally, even if the D.C. Circuit had vacated the 2003 and 2008 FCC Orders, ACA International does not control the Ninth Circuit’s interpretation of the statutory language of the TCPA. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) (“When evaluating the issue of whether equipment is an ATDS, the statute’s clear language mandates that the focus must be on whether the equipment has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.”) (emphasis in original) (internal quotations omitted). Similarly, plaintiffs have failed to establish, as a matter of law, that the Ytel Dialer had the “capacity,” as defined by the Ninth Circuit precedent discussed above, to qualify as an ATDS within the meaning of the TCPA. Plaintiffs have not presented any direct evidence, including testimony, regarding the function and capabilities of the Ytel Dialer. Plaintiffs’ expert Randall Snyder did not examine the machine, but only reviewed the capabilities literature provided by the manufacturer of the Ytel Dialer and information from witnesses who used the device. (Dkt. No. 199-6, Transcript of Deposition of Randall Snyder (“Snyder Dep. Tr.”) at 55:14-24, 78:2-80:5.) Therefore, without proffering direct evidence, plaintiffs cannot show, as a matter of law, that the standard articulated in Meyer and Satterfield is met. See Meyer, 707 F.3d at 1043 (holding that predictive dialers fall squarely within the definition of ‘automatic telephone dialing system’); Satterfield, 569 F.3d at 951 (holding that a device “need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it”). Accordingly, Alarm.com’s motion for partial summary judgment as to whether the Ytel Dialer constitutes an ATDS within the meaning of the TCPA is DENIED.Plaintiffs’ analogous and opposite motion for partial summary judgment as to the Ytel Dialer is also DENIED.