In DeNova v. Ocwen Loan Servicing, LLC, No. 8:17-cv-2204-T-23AAS, 2019 U.S. Dist. LEXIS 163014 (M.D. Fla. Sep. 24, 2019), Judge Merryday overruled the Magistrate’s ruling that an Aspect dialing system was an ATDS.
Denise DeNova alleges (Doc. 2) that between April 2013 and May 2016, Ocwen Loan Servicing, attempting to collect DeNova’s delinquent mortgage, used an “Aspect predictive dialing system” to call DeNova’s cellular telephone 1,645 times. (Doc. 67-4) DeNova sues Ocwen (1) under the Telephone Consumer Protection Act (TCPA), which prohibits “using any automatic telephone dialing system or an artificial or prerecorded voice” to call a cellular telephone (Count VII) and (2) under the Florida Consumer Collection Practices Act (FCCPA) and the Fair Debt Collection Practices Act (FDCPA), both of which prohibit a debt collector from employing abusive or harassing collection tactics (Counts I-II, V-VI) and from attempting to collect a debt from a person represented by an attorney (Counts III-IV). DeNova and Ocwen move (Docs. 42, 43) for summary judgment. A July 26, 2019 report and recommendation (Doc. 85) finds (1) that Ocwen’s Aspect system constitutes an “automatic telephone dialing system;” (2) that Ocwen 152 times called DeNova using a “prerecorded voice” under the TCPA; (3) that the FDCPA’s one-year statutory limitation bars DeNova from recovering for the 1,374 calls placed before February 1, 2016, and that the FCCPA’s two-year statutory limitation bars DeNova from recovering for the 815 calls placed before February 1, 2015; and (4) that a genuine factual dispute remains about whether Ocwen called with a harassing frequency, whether Ocwen knew DeNova had retained an attorney, and whether DeNova revoked consent to receive debt-collection calls. Accordingly, the July 26 report recommends granting-in-part Ocwen’s motion for summary judgment and denying DeNova’s motion for summary judgment. . . . Ocwen’s TCPA Objection Ocwen objects (1) that ACA Int’l v. FCC, 885 F.3d 687 (D.C. Cir. 2018), invalidates the declaratory rulings on which the report relies and (2) that — assuming the invalidity of the FCC regulations — Ocwen’s Aspect system does not constitute an automatic telephone dialing system under the TCPA. . .
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Although Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), finds intolerable ambiguity in the definition of an ATDS and embarks on an ambiguous quest to discover the (always malleable) congressional intent, the natural and grammatical reading of the TCPA’s definition of an ATDS — the focus of which is the capacity to generate random or sequential numbers — compels the conclusion that to constitute an ATDS the system must possess the capacity (1) to store telephone numbers using a random or sequential number generator or (2) to produce telephone numbers using a random or sequential number generator. Gonzalez v. Ocwen Loan Servicing, LLC, 2018 U.S. Dist. LEXIS 153480, 2018 WL 4217065, at *6 (M.D. Fla. Sept. 5, 2018) (Moody, J.); Brown v. Ocwen Loan Servicing LLC, 2019 WL 4221718, at *5 (M.D. Fla. Sept. 5, 2019) (Barber, J.); Thompson-Harbach v. USAA Federal Savings Bank, 359 F. Supp. 3d 606, 625 (N.D. Iowa 2019); Adams v. Safe Home Sec. Inc., 2019 U.S. Dist. LEXIS 126522, 2019 WL 3428776, at *3-4 (N.D. Tex. July 30, 2019); Keyes v. Ocwen Loan Servicing LLC, 335 F. Supp. 3d 951, 963 (E.D. Mich. 2018). Resisting this interpretation, DeNova argues that a system cannot “store” numbers using a random or sequential number generator. But the inclusion of “store” ensures “that a system that generated random numbers and did not dial [the numbers] immediately but instead stored [the numbers] for later automatic dialing” constitutes an ATDS. Johnson v. Yahoo!, Inc., 346 F. Supp. 3d 1159, 1162 n.4 (N.D. Ill. 2018). And the occasional redundancy with “store” and “produce” cannot overcome the natural and grammatical reading of the statute. Also, DeNova argues that reading “using a random or sequential number generator” to qualify both “store” and “produce” nullifies the affirmative defense of consent. Under Section 227(b)(1)(A), a caller may avoid liability under the TCPA if the caller receives consent before calling. DeNova contends that if an ATDS must possess the capacity to generate and call random or sequential numbers, the caller cannot receive consent before calling because the ATDS calls numbers at random. However, the affirmative defense retains force because liability attaches under the TCPA if a person uses a pre-recorded or artificial voice to call a number neither randomly nor sequentially generated. Also, because a system constitutes an ATDS if the system possesses the “capacity” to generate random or sequential numbers, liability attaches to a caller using an ATDS even if the caller does not use the ATDS’s capacity to generate random or sequential numbers. To constitute an ATDS the system must possess the capacity to generate random or sequential numbers. Ocwen’s objection to the report’s resolution of the TCPA claim is SUSTAINED.