In Brown v. Ocwen Loan Servicing Llc, No. 8:18-cv-136-T-60AEP, 2019 U.S. Dist. LEXIS 151236, at *11-15 (M.D. Fla. Sep. 5, 2019), Judge Barber granted in part and denied in part summary judgment brought by a TCPA defendant, distinguishing between pre-recorded and non-prerecorded calls.
Ocwen contends summary judgment on the Browns’ TCPA claims is warranted because its Aspect dialer is not an ATDS under the TCPA. (Doc. # 39 at 8-20). The TCPA defines an ATDS as “equipment which has the capacity — (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). According to Ocwen, following the D.C. Circuit’s decision in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018), a dialing system must have the present ability to generate random or sequential numbers to meet the definition of an ATDS. (Doc. # 39 at 13-15). In support, Ocwen relies on Gonzalez v. Ocwen Loan Servicing, LLC, which held “the definition of an ATDS would not include a predictive dialer that lacks the capacity to generate random or sequential telephone numbers and dial them; but it would include a predictive dialer that has that capacity.” No. 5:18-cv-340-Oc-30PRL, 2018 WL 4217065, at *6 (M.D. Fla. Sept. 5, 2018). The court in Gonzalez also explained that “a device [has] the capacity to generate random or sequential telephone numbers only if the device has the ‘present ability’ to do so.” Id. (citing ACA Int’l, 885 F.3d at 695-97). Ocwen explains its Aspect dialer is not capable of generating and dialing random or sequential numbers. (Doc. # 39 at 18-20). Therefore, Ocwen contends its Aspect dialer is not an ATDS. (Id.). Having independently considered the issue, the Court agrees with Gonzalez and concludes Ocwen’s Aspect dialer is not an ATDS under the TCPA. Summary judgment is therefore granted in favor of Ocwen on the Browns’ TCPA claims based on the use of an ATDS. Nevertheless, whether Ocwen’s Aspect dialer meets the definition of an ATDS is not dispositive of the Browns’ other TCPA claims. Specifically, in addition to claiming that Ocwen used an ATDS, the Browns also claim that Ocwen used an artificial or prerecorded voice when calling them. (Doc. # 18 at ¶¶ 59, 61). The TCPA prohibits calls “using any automatic telephone dialing system or an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). Calls made using an artificial or prerecorded voice are independently actionable from calls made using an ATDS. Whitehead v. Ocwen Loan Servicing, LLC, No. 2:18-cv-470-FtM-99MRM, 2018 WL 5279155, at *4 (M.D. Fla. Oct. 24, 2018). As Ocwen concedes, there are disputed issues regarding how many calls Ocwen placed using an artificial or prerecorded voice. (Doc. # 46 at 5). According to the Browns, they answered ninety-eight total calls “where they were put into a hold queue and heard a prerecorded or artificial voice message asking them to hold for a representative.” (Doc. # 47 at 3). Forty-three of those calls were placed after May 20, 2016 – the date the Browns aver they revoked Ocwen’s permission to call the – 5620 number. (Doc. # 42 at ¶¶ 44-45). In support, the Browns rely on the “QUEUEENDDT” column of Ocwen’s call logs, which according to the Browns, identifies calls that were placed in a “hold queue” and received a prerecorded or artificial voice message. (Id.; Doc. # 47 at 3). The Browns also rely on their deposition testimony, where Bonnie stated she received prerecorded or artificial voice messages “every day” and James stated he received them “a bunch of times.” (Doc. # 42-8 at 72:17-19; Doc. # 42-9 at 53:5-21). In response, Ocwen contends the Browns misconstrue the call logs. According to Ocwen, the “QUEUEENDDT” column does not identify calls that received a prerecorded voice message. (Doc. # 54 at 2). Instead, the “QUEUEENDDT” column identifies when calls exited either the disposition queue or the wait queue. (Id.). Calls in the disposition queue that are not connected with an Ocwen representative right away are placed into the wait queue. (Doc. # 54-2 at ¶ 6). According to Ocwen, the “CALLQSTARTDT” column of its call logs identifies calls that were placed in the wait queue, and only calls that were in the wait queue for more than two seconds received a prerecorded voice message. (Doc. # 54 at 2). Seven calls made to the – 5620 number were placed in the wait queue, and only four of those calls received a prerecorded voice message. (Id.). Thus, Ocwen contends the Browns’ claims are limited to those four calls. (Id.). Ocwen’s argument is supported by the declaration of its Director of Dialer and Workforce Management. (Id.; Doc. # 54-2). These disputed issues regarding how many calls were placed to the – 5620 number using an artificial or prerecorded voice preclude summary judgment on the Browns’ remaining TCPA claims for either side.