On June 27, 2014, Judge Saylor of the U.S.D.C. in Massachusetts in Davis v. Diversified Consultants, Inc, here, concluded that the LiveVox technology was an ATDS under the FCC’s rules, and granted summary judgment to the Plaintiff on his TCPA claim.  Judge Saylor’s decision echoes that of Judge Ungaro of the U.S.D.C. for the Southern District of Florida in Lardner v. Diversified Consultants Inc., — F.Supp.2d —-, 2014 WL 1778960 (S.D.Fla. 2014) on May 7, 2014.  In Lardner, Judge Ungaro found that defendant’s use of the LiveVox system constituted an “ATDS” under the TCPA.

Regarding Defendant’s first argument, there is no factual dispute regarding how LiveVox works; Plaintiff does not contend the software contains a random or sequential number generator. The issue before the Court is solely one of statutory interpretation and is therefore appropriate for summary judgment. . . .  ¶  Having found that Congress did not directly address this issue, the Court finds that the FCC’s interpretation regarding what constitutes an ATDS under the TCPA is reasonable. In its 2003 order, the FCC explained that the TCPA was enacted to alleviate automated calls to certain categories of telephone numbers, including numbers assigned to wireless services and calls where the consumer is charged. 18 F.C.C.R. 14014 ¶ 133. To distinguish between objectionable calls made using automatic dialing software that pulls from a preprogrammed set of telephone numbers and objectionable calls made using software that arbitrarily formulates telephone numbers would not serve the purpose of the statute. Id. The FCC’s interpretation is “based on a permissible construction of the statute” and must therefore be given deference. Chevron, 467 U.S. at 843.  ¶   ¶  Many other courts, including this Court, have followed the FCC’s interpretation that automated dialing systems that automatically dial cell phone numbers from a preprogrammed list, including the specific LiveVox software at issue in this action, are “automatic telephone dialing systems” under the TCPA. See Bianchi v. Bronson & Migliaccio, LLP, Case 0:09–cv–61164–UU, May 27, 2010, D.E. 59 at 5 (“The undisputed evidence in this case shows that LiveVox is a fully-automated dialing service, which calls debtors without any human intervention[.]”); Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir.2012); Swope v. Credit Mgmt., LP, Case No. 12CV832, 2013 WL 607830, at *4 (E.D.Mo. Feb. 19, 2013) (The FCC has twice “held that predictive dialers are considered automatic telephone dialing systems subject to the TCPA, and that debt collectors are not exempt from the statute’s pro-hibitions.”); Vance v. Bureau of Collection Recovery, LLC, No. 10–cv–06324, 2011 WL 881550, at *2 (N.D.Ill. Mar. 11, 2011) (“[T]he FCC has indicated, and other courts have held, that predictive dialing systems do meet the definition of devices prohibited by the TCPA.”); see also Ortega v. Collectors Training Inst. of Ill., No. 09–21744–CIV, 2011 WL 241948, at *8 (S.D.Fla.Jan.24, 2011) (denying sum-mary judgment because there was evidence that de-fendants used an “auto dialer system” and because Plaintiff heard a “robot voice” on the message). As such, it does not matter that the LiveVox software is not used to store or produce telephone numbers using a random or sequential number generator. It qualifies as an ATDS under the statute because it automatically dials telephone numbers from a preprogrammed list.

The District Court also found that the LiveVox system does, in fact, use an artificial or pre-recorded voice within the meaning of the TCPA.

The TCPA imposes liability where a party either uses an ATDS or uses a pre recorded or an artificial voice. 47 U.S.C. § 227(b)(1)(A). Plaintiff argues that because Defendant used a technology called “IVR,” an interactive recorded voice, where the LiveVox software plays a prerecorded message prompting the listener to choose between two options, Defendant used an artificial or prerecorded voice during its calls to Plaintiff. D.E. 18–1 at 11–13. Defendant contends that it does not violate this provision because the prerecorded messages are not produced by Defendants or uploaded into the dialing system by Defendants, but are instead “voice talents” provided by LiveVox that are prerecorded and uploaded to the dialing system by LiveVox. D.E. 24 at 11–12; D.E. 30 at 11–12.  ¶  Defendant’s argument is nonsensical and fails under the plain language of the TCPA. The statute prohibits making “any call … using … an artificial or prerecorded voice.” 47 U.S.C. § 227(b)(1)(A). There is no dispute that Defendant’s debt collectors were the individuals making the calls to Plaintiff, and that the calls used a prerecorded message embedded in the LiveVox dialing system. D.E. 17–2 at 12:21–14:5, 14:23–25, 24:15–25:14, Under the statute, it does not matter whose voice is on the prerecorded message or which entity has provided the prerecorded message, so long as the call is initiated by the debt collector and uses a prerecorded message. There is no genuine dispute of material fact that Defendant used a prere-corded message when it called Plaintiff, in violation of the TCPA.

Finally, the District Court found that defendant obtained Plaintiff’s number through “skip-tracing”, negating any possibility of prior express consent.

Plaintiff has submitted an affidavit stating that she did not receive her 1705 number until after her subscription with T–Mobile ended. D.E. 18–2 ¶ 7. Defendant has no evidence of direct express consent and there is no testimony or evidence from T–Mobile that Plaintiff provided her 1705 number in connection with the alleged debt. D.E. 17–2 at 5. Defendant’s Vice President of Compliance, Mavis–Ann Pye, submitted a declaration that the 1705 number was obtained from the original creditor, T–Mobile, but there is no evidence regarding how T–Mobile obtained Plaintiff’s 1705 number. D .E. 34 ¶ 7. Ms. Pye also testified that Plaintiff’s phone number was found through a “skip-trace.” D.E. 17–1 at 28:4–21. A skip-trace is “the process of developing new telephone, address, job or asset information on a customer, or verifying the accuracy of such information.” Meyer, 707 F.3d at 1040 n. 1.  The cases cited by Defendant exemplify the type of evidence necessary to show prior express consent. In these cases, there was evidence that the call recip-ient had provided his or her cell phone number to the original creditor during the transaction that resulted in the debt owed. See Johnson v. Credit Prot. Ass’n, L.P., No. 11–80604–CIV, 2012 WL 5875605, at *4 (S.D.Fla. Nov. 20, 2012) (cell phone number given to cable provider); Cavero v. Franklin Collection Serv., Inc., No. 11–22630–CIV, 2012 WL 279448, at *3 (S .D.Fla. Jan.31, 2012) (finding prior express consent where the original creditor provided affidavits and business records showing plaintiff provided his cell phone number); accord 23 F.C.C.R. 559 ¶ 9. Here, even assuming the veracity of Ms. Pye’s declaration and testimony, there is no evidence regarding how T–Mobile obtained Plaintiff’s cell phone number and whether she provided it in connection with the alleged debt on her account. Thus, Defendant has failed to show a genuine issue of material fact as to whether Plaintiff gave prior express consent to receive De-fendant’s phone calls. Accordingly, summary judg-ment should be granted for Plaintiff on her TCPA claim because Defendant made calls using an auto-matic telephone dialing system to Plaintiff’s cell phone. 47 U.S.C. § 227(b)(1)(A)(iii). The Court need not reach whether Defendant also violated the TCPA for making calls to Plaintiff using an “artificial or prerecorded voice,” but if that were the sole basis for Plaintiff’s TCPA claim, the Court would also grant summary judgment for Plaintiff on that basis. De-fendant’s call log shows, D .E. 17–3; D.E. 17–4 17–4, and Defendant agrees, D.E. 30 at 22, that it placed 126 calls using the campaign mode to Plaintiff. Plaintiff seeks $500 per call violation. As such, the Court will enter a judgment in favor of Plaintiff and against Defendant for $63,000.