In Gaza v. LTD Financial Services, L.P., 2015 WL 5009741, at *4 (M.D.Fla.,2015), Judge Moody granted summary judgment to a TCPA defendant whose calls were only dialed manually.
With respect to the ATDS definition, the FCC, in its July 10, 2015 Declaratory Ruling and Order noted: “We reaffirm our previous statements that dialing equipment generally has the capacity to store or produce, and dial random or sequential numbers (and thus meets the TCPA’s definition of “autodialer”) even if it is not presently used for that purpose, including when the caller is calling a set list of consumers. We also reiterate that predictive dialers, as previously described by the Commission, satisfy the TCPA’s definition of “autodialer” for the same reason. We also find that callers cannot avoid obtaining consent by dividing ownership of pieces of dialing equipment that work in concert among multiple entities.” In the Matter of Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 2015 WL 4387780, at *5–*6 (F.C.C. July 10, 2015) (“2015 FCC Ruling”). Here, Gaza has pointed to no admissible evidence establishing that the calls placed to Gaza were made with “dialing equipment” that has “the capacity to store or produce, and dial random or sequential numbers.” There is also no evidence showing that the calls were made using a predictive dialer. The record shows that the subject calls were placed manually. Gaza has not pointed to any evidence that contradicts John’s testimony that the agent selected the number to be called and the calls were made as a result of human intervention. Gaza relies on the 2015 FCC Ruling to argue that the focus should be on whether the calls were placed with “dialing equipment,” but, even under this broad definition, he does not point to any admissible evidence showing that dialing equipment was utilized with respect to the subject calls. Gaza also makes statements in his response to the summary judgment motion that are wholly unsupported in the record and attempts to improperly shift the burden to LTD to disprove the elements of Gaza’s case.