In Barnett v. First Nat’l Bank of Omaha, Civil Action No. 3:20-cv-337-CHB, 2022 U.S. Dist. LEXIS 104029, at *5-8 (W.D. Ky. June 10, 2022), Judge Boom denied a motion to reconsider a finding that the TCPA defendant’s LiveVox system was not an ATDS.
In his Motion, Barnett claims that the Court failed to consider FNBO’s use of the TWX system in conjunction with the LiveVox system. [R. 40, p. 3]. Specifically, Barnett contends that, together, TWX and LiveVox make up an ATDS because LiveVox can, and does, store numbers randomly or sequentially generated by TWX daily. Id. at 3-4 (“The TWX software is considered part of the ‘equipment’ [FNBO] used to contact [Barnett] … [FNBO] … attempt[s] [to] circumvent the TCPA by partitioning the features of an ATDS among two separate pieces of software.”). The Court rejects this argument for two reasons. First, LiveVox is not an ATDS simply because it stores a randomly or sequentially generated list of numbers from TWX on a daily basis. As made clear in the Court’s previous Memorandum and Opinion, LiveVox, the system actually used by FNBO to call Barnett, cannot, itself, store or produce numbers to be called using a random or sequential number generator. See [R. 37, pp. 4-9]; see also Duguid, 141 S. Ct. at 1170 (requiring “that, in all cases, whether storing or producing numbers to be called, the equipment in question must use a random or sequential number generator.”) (emphasis added). Consequently, it cannot qualify as an ATDS as defined by Duguid. See 141 S. Ct. at 1167 (The definition of an ATDS under the TCPA does not encompass “equipment that can ‘store’ and dial telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.'”) (emphasis added). Second, LiveVox is not an ATDS simply because it has a cooperative link to TWX. It is clear, from the record, that though FNBO utilizes both TWX and LiveVox, TWX and LiveVox are two separate systems/programs that perform distinct tasks:
• Every day, the TWX system “generates a file of all of [FNBO’s] accounts that are past due and that are eligible to be called” on a particular day. [R. 32-11, p. 18, 17:16-18].
• Once curated, the file, which provides accounts containing customer profiles with telephone numbers, is sent to FNBO’s LiveVox system. Id. at 18, 19, 17:18-21, 18:3-6.
• Once the LiveVox system receives the file, FNBO administrators work with the accounts to develop campaign strategies based on different criteria, such as times zones or balances. Id. at 22, 21:7-13. In addition, the FNBO administrators also determine which customers are to be called and in what order. Id. at 34-35, 38-40, 33:11-34:10, 38:11-40:5.
• The LiveVox system then uses the FNBO administrators’ predetermined lists to call the designated customers. [R. 31-1, Ex. A, p. 3, ¶ 14].
Thus, to hold that LiveVox is an ATDS due to its tie with TWX would virtually subject a non-ATDS system/program to the TCPA because of its mere association with another, separate system/program. The Court declines to support such a broad expansion of the TCPA. See Meier v. Allied Interstate LLC, No. 20-55286, 2022 U.S. App. LEXIS 1413, at *3 (9th Cir. Jan. 19, 2022) (“[I]nterpreting ‘equipment’ to include distinct programs because they share a database or other component would drastically expand the sweep of the TCPA.”). Further, the cases cited by Barnett in support of his argument, see [R. 40, p. 3], fail to convince the Court to do otherwise, as both cases were decided pre-Duguid, which resolved a circuit split as to what qualified as an ATDS under the TCPA. See 141 S. Ct. at 1167 (“To qualify as an [ATDS], a device must have the capacity to store a telephone number using a random or sequential generator or produce a telephone number using a random or sequential number generator.”) (emphasis added). Accordingly, for these reasons, Barnett has failed to meet the clear error standard under Rule 59(e).