In Nieto v. Allied Interstate, Inc., 2014 WL 4980376 (D.Md. 2014), Judge Blake granted summary judgment to a TCPA defendant on the basis that no ATDS was used to dial the call.
No genuine dispute exists as to whether Allied used an ATDS in calling Nieto. In support of its assertion that it did not use an ATDS, Allied presents an affidavit from Richard Temple, Allied’s Senior Vice President of Telephony, who declares that Allied does not use an ATDS when placing calls in support of its collection activity.FN3 Temple testified under penalty of perjury, and based on personal knowledge. [FN3. Specifically, Richard Temple declares that (1) “[t]elephone numbers dialed by Allied … are not generated by a computer system, but rather are listed in the underlying client file”; (2) Allied’s “dialing equipment … does not have the capacity to store or produce telephone numbers to be called using a random number generator” or “sequential number generator”; and (3) Allied never used such dialing equipment to call the 2049 number during the time period alleged in Nieto’s complaint. (Def.’s Mot. Summ. J. Ex. D, Temple Aff. ¶¶ 5–8, ECF No. 16–6.)] The evidence Nieto offers to contest this issue is not sufficient to create a genuine dispute. Nieto primarily relies on his conjecture that market pressures required Allied to use an ATDS. (Pl .’s Opp’n 2, ECF No. 20 (“In order for [Allied] to be competitive in today’s debt collection industry/marketplace [Allied] ha[s] to use an autodial system in some form when making calls, and store numbers in their system….”).) But “conclusory allegations” and “mere speculation” of this kind are insufficient. Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.2013). Nieto also submits an unidentified screenshot of what he purports is a system database that debt collection agencies use. (Pl.’s Opp’n Ex. A, ECF No. 20–1 .) Yet he does nothing to show that Allied used such a system when it called him. And even if it were of Allied’s system, the screenshot does not prove the existence of an ATDS because nothing depicted suggests autodialing capacity. Nieto finally points out that Allied does not present any objective evidence of the technical specifications of its telephone dialing system-either of its own accord or in response to Nieto’s reasonable discovery requests-implying that Allied is hiding material facts. But Allied’s senior management has testified under penalty of perjury that Allied does not use an ATDS. Without other evidence calling Allied’s affidavits into question, Nieto cannot prevail.
Judge Blake offered interesting insight to the application of the TCPA to VoiP technology, but, ultimately concluded that it was not necessary to her decision.
Moreover, it is not clear whether the service to which Nieto’s 2049 number was assigned was of the kind that falls within the TCPA. Allied showed that Nieto’s number was not assigned to a cellular telephone service both through deposition testimony elicited from Nieto that his phone is assigned to a VoIP-based device that is merely “ comparable to a cellular or mobile radio device,” (Nieto Dep. 47 (emphasis added)), and through Nieto’s failure to object to a request for admission that his 2049 number “was not assigned to a cellular telephone service,” (Allied Req. for Admis. No. 3). Nieto relies on his decades of expertise in telecommunications to argue for a more nuanced understanding of the technology underlying his VoIP service.FN5 In any event, whether Nieto’s service falls within the scope of the TCPA is not a question the court needs to resolve for this case, because Nieto cannot satisfy the requirement of proving Allied uses an ATDS.FN6 Accordingly, the calls Allied made to Nieto cannot give rise to liability under the TCPA. [FN5. Notably, Nieto never asserts his VoIP-based service is a cellular phone service. Instead, Nieto declares that the former is “comparable in technical design to” and “comparable to what people, lay people, understand as” the latter. (Nieto Dep. 48.) On the other hand, Nieto clarified in his affidavit that his was a “mobile radio device similar to a cellular based system,” and not simply a cellular-based device. (Nieto Aff. ¶ 5, ECF No. 22.)] [FN6. Nieto never alleged that his service fell within the last statutory ground-that is, “any service for which the called party is charged for the call.” Even if he had, no evidence exists showing he was charged on a per-call basis.]