In Walker v. Transworld Systems, Inc., 2015 WL 631390 (M.D.Fla. 2015), Judge Moody denied summary judgment to a TCPA defendant because, he found, the defendant’s use of “Live-Vox” constituted use of an ATDS under the TCPA.
TSI is correct that Walker cannot prevail on her TCPA claim if TSI did not use an ATDS to call Walker. The record reflects evidence that TSI called Walker using a predictive telephone dialing system known as “LiveVox.” TSI argues that LiveVox is not an ATDS because it does not have the capacity to produce or store telephone numbers using a random or sequential number generation. TSI’s argument is without merit because it is inconsistent with the Federal Communications Commission’s rulings on the issue of what constitutes an ATDS. See Smith v. MarkOne Fin., LLC, 2015 WL 419005, at *2–*3 (M.D.Fla. Feb. 2, 2015). In MarkOne, the district court noted: MarkOne argues that the absence of any evidence that the LiveVox system used a random or sequential number generator establishes that the system is not an ATDS. (Doc. 68 at 16). However, the FCC has ruled that a dialer need not have a random or sequential number generator to qualify as an ATDS. See In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. at 14091–93 (finding that the TCPA was intended to protect against autodialed calls, including calls from a list of numbers). Id. Simply put, the FCC has repeatedly found that a predictive dialer is an ATDS. See In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14091–93 (2003); see also In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 F.C.C. Rcd. 15391, 15399, n. 5 (2012); In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559, 566 (2008).” ¶ This Court is bound by the FCC’s determinations. See Mais, 768 F.3d at 1119. And the record reflects evidence that TSI’s LiveVox system has the capacity to generate numbers and dial them without human intervention. Accordingly, there is a genuine dispute on the issue of whether TSI made a call using an ATDS and, as such, TSI’s motion must be denied.