In Roark v. Credit One Bank, N.A., Defendant., 2018 WL 5921652 (D.Minn., 2018), Judge Magnuson found that no ATDS was used by a caller under post-ACA standards.
Roark is incorrect that ACA Int’l has no bearing on previous FCC rulings that determined that predictive dialing systems are autodialers. The D.C. Circuit in fact rejected this very argument. “According to the [FCC], because there was no timely appeal from [the 2003 and 2008 rulings], it is too late now to raise a challenge by seeking review of a more recent declaratory ruling that essentially ratifies the previous ones. We disagree.” ACA Int’l, 885 F.3d at 701.Here, there is no question that the devices used by Credit One’s agents are predictive dialing systems. However, in the wake of ACA Int’l, predictive dialing systems are no longer always considered autodialers under the TCPA. Rather, the correct inquiry is whether a device can generate numbers to dial either randomly or sequentially. Credit One’s “limited understanding of the proprietary dialing systems employed by the vendors is that none of those systems has the actual capability of randomly/sequentially generating numbers to dial” (Meek Decl. (Docket No. 88) at 6 ¶ 31), and “the vendors have worked diligently to ensure that their dialing systems do not have such capabilities ….” (Id. at ¶ 32.)Roark has provided little evidence regarding the specifics of Credit One’s dialing systems and has not argued that the systems have either the present or future ability to generate numbers to call. Roark instead urges this Court to follow the Ninth Circuit decision mentioned above. See generally Marks, 904 F.3d 1041. This Court, however, finds the decisions of the D.C., Second, and Third Circuits more persuasive.In sum, Roark has failed to show that there is a genuine issue of material fact regarding the required functionality of Credit One’s dialing system. Credit One asserts that the systems it uses do not have the present capability to generate random or sequential numbers to dial, and Roark has offered nothing to rebut that claim.
Judge Magnuson seemingly rejected Soppett, and held that whether a caller could be liable for a re-assigned number depended on the reasonableness of the caller’s behavior.
The TCPA makes it unlawful to use an artificial or prerecorded voice to place a call to a cell number without “the prior express consent of the called party.” 47 U.S.C. § 227(b)(1)(A). The FCC has interpreted the statutory term “called party” as the current subscriber of the cell number and not the intended recipient of the call. The decision in ACA Int’l, however, invalidated a portion of the FCC ruling that allowed for a one-call “safe harbor” rule for reassigned numbers and “set aside the Commission’s treatment of reassigned numbers as a whole.” 885 F.3d at 708-09. To determine whether there has been a violation of this section of the TCPA under current authority, the Court must consider the reasonableness of the caller’s reliance on a prior number holder’s express consent. Credit One had express consent from R.B. to call him at the number he provided, including consent to call him with prerecorded messages. Credit One had no reason to know that the phone number had been reassigned because they received no notice from Roark and the caller I.D. for the number still populated with R.B.’s information. It was reasonable for Credit One to rely on R.B.’s prior express consent to call his number, and therefore summary judgment on this issue is proper.