In Warnick v. DISH Network LLC, 2014 WL 6680407 (D.Colo. 2014), Judge Daniel made permanent what he previously made only temporary: that Plaintiff could not plead a recursive “fail-safe” TCPA class consisting of recipients of auto-dialed calls to their cellphones who had not provided prior express consent.

Plaintiff argues, however, that he has addressed concerns about the TCPA Tracker class being over-broad and/or unascertainable through the class definition he proposed in his now withdrawn Amended Motion for Class Certification and which he repre-sented at the show cause hearing would be the class definition he intends to go forward with. That definition excludes customers of DISH, family and house-hold members of the DISH customer whose account the call concerned, and persons who provided prior express consent. See Am. Mot. for Class Certification at 1. He asserts that the only records that need to be reviewed relevant to this class definition are the records/data for the individuals whose telephone numbers are in the TCPA Tracker, and that his experts can ascertain the class members from this data through the matching methodology they described at the hearing in March 2014 on Plaintiff’s Motion for Class Certification. ¶ I find that, even with the narrowed definition, Plaintiff’s class definition is still not administratively feasible, and thus not ascertainable, and is overbroad. First, as noted in my June 27, 2014 Order, DISH has provided evidence that it only calls numbers provided by customers or persons associated with those customers and that those persons consented to DISH calling the numbers they designated. Thus, by definition, the vast majority of the 27,000 individuals in the TCPA Tracker and related customer database could not be “class members” under Plaintiff’s new definition. (See Picchione Aff., ¶¶ 4–11, ECF No. 83.) While Plaintiff hopes to represent a class of “anomalies”—that is, persons that DISH called by mistake when attempting to reach a DISH customer, I previously found, and reiterate now, that Plaintiff’s pro-posed “matching” would not eliminate consenting persons from Warnick’s proposed class because “non-customers” do not necessarily equal “non-consenting parties”. (See order denying class certification.) ¶ As noted in the Order on Summary Judgment, the TCPA Tracker reflects numbers that someone has asked DISH to removed as to future calls; it does not record or investigate how a number was originally added to a customer’s account or otherwise determine issues of consent. DISH showed that there are many different scenarios in which the numbers provided to it may have been associated with someone other than the named account holder on DISH records. ¶ While Plaintiff has recognized this through now seeking to exclude household or family members from the class definition, this exclusion does not address all the possible scenarios whereby people could have provided their number to DISH and consent to call them in connection with the account, e.g., roommates or a friend of the named account holder. Plaintiff has not been able to identify those people and how they are going to be excluded from the class. This would require individualized fact inquiries, as these individuals can not be ascertained by reference to objective criteria. See Carrera, 727 F.3d at 307–08 (“Administrative feasibility means that identifying class members is a manageable process that does not require much, if any, individual factual inquiry’ ”) (quotation omitted). Further, Plaintiff’s expert Robert Biggerstaff admitted the methodology he would use to identify class members from the TCPA Tracker would produce many false positives, such as a husband and wife with different last names and different mailing or billing addresses. Again, identifying such people would require individualized inquiries. ¶ Based upon the foregoing, I find that Plaintiff has not shown why I should not convert the denial without prejudice of the Motion for Class Certification to a denial with prejudice. Accordingly, the Order to Show Cause is made absolute, and Plaintiff’s Motion for Class Certification is now denied with prejudice.