In Griffith v. Consumer Portfolio Serv., Inc., 2011 WL 3609012 (N.D.Ill. 2011), Judge Grady denied an automobile finance company’s motion for summary judgment on the sole issue of whether it’s dialing system was an ADAD within the meaning of the TCPA. The finance company’s system was described as follows:
The named plaintiffs in this case, Roslyn Griffith and Jerret Cain, allege that they received unauthorized telephone calls and text messages on their cellular telephones from CPS, a sub-prime auto-finance lender. The sole question raised by CPS’s motion for summary judgment is whether it employs an “automatic telephone dialing system,” as that term is defined by the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(a). The manner by which CPS places its debt-collection calls is largely undis-puted. CPS stores customer information on its computer network chronologically (by loan date) in a file known as the “Customer Information File.” (Def.’s Stmt. of Undisputed Material Facts in Support of its Mot. for Summ. J. (hereinafter, Def.’s Stmt.) ¶¶ 5–6.) The Customer Information File is located in a portion of CPS’s computer network known as the “Collections System.” (Id. at ¶ 6.) In each of its of-fices CPS maintains a “dialer,” manufactured by Castel, Inc., which automatically places calls to CPS customers “so that [CPS] does not have to manually dial every customer who falls behind on payments.” (Id. at ¶ 7.) Each Castel dialer connects to: (1) CPS’s computer network; and (2) a “private branch exchange,” which connects the dialer to the customers it calls. (Id.) Using this equipment CPS conducts “dialing campaigns,” calling multiple customers at a given time. (Id. at ¶ 8.) ¶ The night before a dialing campaign begins, a computer program reviews account information for every CPS customer listed in the Customer Information File and identifies customers eligible for the dialing campaign using criteria selected by CPS. (Id. at ¶ 9; see also Gallagher Decl. ¶ 8 (stating that as a first cut CPS might, for example, use the program to identify all customers who are less than 60 days in arrears).) This same program then copies the account and telephone numbers of each eligible customer into a new temporary computer file called the “Dialer File.” (Def.’s Stmt. ¶ 10.) On the day of the campaign, a supervisor in CPS’s collections department inputs additional criteria for the dialing campaign into CPS’s Collections System, “effectively telling the CPS Collection System which numbers the dialer should call.” (Id . at ¶ 11; see also Clewell Decl. ¶ 7 (“The supervisor might decide, for example, that Illinois customers who owe $500 or more and are 21 to 30 days behind should be called during the campaign.”).) The program then reviews the Dialer File for accounts that satisfy the criteria and copies those accounts and associated telephone numbers into a new file called the “Logical View File.” (Def.’s Stmt. ¶ 13.) At the same time, the supervisor assigns certain CPS employees (“collectors”) to the cam-paign, who then use the program to “ ‘sign on’ to the campaign so that they can ‘answer’ the calls made by the Castel dialer that actually connect to consumers.” (Id. at ¶ 14.) Once the dialing campaign begins, the Castel dialer “reads” the telephone numbers at the “predictive dialing rate” set by the supervisor. (Id. at ¶ 15.) (“Predictive dialing” software on the Collections System regulates the dialer’s call rate to improve efficiency. (Gallagher Decl. ¶ 10; see also Def.’s Stmt. ¶ 12.)) The dialer determines whether a call is answered by a customer, and if so, routes the call back to CPS’s computer system, which forwards the call to an available collector. (Def.’s Stmt. ¶ 16.) The customer’s account information appears on the collector’s computer screen as he or she receives the call. (Id.) While speaking with the customer, the collector enters data into the Customer Information File in the Collections System. (Id. at ¶ 17.) After the dialing campaign is completed, the Collections System prepares reports on the results of the dialing campaign. (Id.)
After a lengthy discussion of the FCC’s regulatory history governing autodialers, Judge Grady found this system to fall under the TCPA:
CPS acknowledges that the FCC’s final orders are binding on this court under the Hobbs Act. See 28 U.S.C. § 2342(1); 47 U.S.C. § 402(a); CE Design Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443, 446–50 (7th Cir.2010); (Def.’s Mem. at 10 n. 4). But it argues that the FCC’s 2003 and 2008 orders are really quite narrow. According to CPS, to fall within the FCC’s interpretation of an “automatic telephone dialing system” the equipment in question must have the technical ability to perform the now obsolete functions performed by dialers when Congress originally passed the TCPA. That is, it must be able to “store or produce numbers using a random or sequential number generator” and “dial numbers randomly or sequentially.” (Def.’s Mem. at 10.) According to CPS’s witnesses, the Castel dialer cannot perform these functions. (Cutler Decl. ¶¶ 19–20; Gallagher Decl. ¶ 16.) CPS’s interpretation of the FCC’s orders, which it supports by quoting portions of those orders out of context, is a transparent attempt to win through litigation a battle that other companies lost before the FCC.FN1 After straining to avoid the clear implications of the FCC’s orders, CPS finally resorts to the argument that the FCC cannot have meant what it said because it is inconsistent with the TCPA. (Def.’s Reply at 4.) This is not the appropriate forum to challenge the validity of the FCC’s orders. See CE Design Ltd., 606 F.3d at 450. Our role is to apply the FCC’s orders to the facts. Id. at 446 n. 3. The FCC concluded that predictive dialers are governed by the TCPA because, like earlier autodialers, they have the capacity to dial numbers “without human intervention.” FN2 In doing so, it interpreted “automatic telephone dialing system” to include equipment that utilizes lists or databases of known, nonrandom telephone numbers. That is precisely how CPS’s equipment operates: the dialer automatically dials numbers stored in the Logical View File and routes answered calls to available collectors. Even assuming that CPS’s equipment can only function in this way, and cannot generate and dial random or sequential numbers (cf. supra n. 1), it is still an “automatic telephone dialing system.” FN3 Likewise, we find no support in the statute or the FCC’s rulings for CPS’s argument that the dialer itself must “store” telephone numbers and/or predictive dialing software. (Def.’s Mem. at 11.) The statute regulates “equipment,” not “dialers,” so it is irrelevant for our purposes that the Castel dialer works in tandem with CPS’s Collections System. (Cf.id.) Indeed, the FCC plainly intended to prevent companies from circumventing the statute in this fashion. In the Matter of Rules and Regulations Im-plementing the Telephone Consumer Protection Act of 1991, 18 FCC Rcd at 14092–93. Plaintiffs ask us both to deny CPS’s motion and to hold for plaintiffs as a matter of law on the same issue. (Pls.’ Mem. at 2.) We will grant the request. For the reasons we have just explained, we conclude as a matter of law that CPS employs an “automatic telephone dialing system” to call its customers.
Judge Grady also rejected the company’s argument that debt collection calls to cellular telephones fell outside the TCPA’s purview:
Finally, we reject CPS’s argument that the TCPA only applies to telemarketing, not debt collection. (Def.’s Mem. at 12; Def.’s Reply at 8–10.) Certain TCPA provisions apply only to “telephone solicitations,” and consequently those provisions do not apply to debt-collection calls. In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd at 565. But § 227(b)(1)(A)(iii)—the provision that plaintiffs allege CPS violated—“prohibits the use of autodialers to make any call to a wireless number in the absence of an emergency or the prior express consent of the called party…. [T]his prohibition applies regardless of the content of the call, and is not limited only to calls that constitute ‘telephone solicitations.’ “ Id.