In Jiminez v. Credit One Bank, N.A., No. 17 CV 2844-LTS-JLC, 2019 U.S. Dist. LEXIS 53096 (S.D.N.Y. Mar. 28, 2019), Judge Swain found that a LiveVox system constituted an ATDS under the TCPA.
The Court next turns to the question of whether the LiveVox system at issue in this case is a predictive dialer within the meaning of the FCC’s earlier rulings. Citing primarily to the declaration of Kevin Stark, former director of Product Management for LiveVox, who states that LiveVox “has predictive dialing capabilities and the ability to launch phone calls without direct human intervention,” Plaintiff argues that LiveVox is a predictive dialer. (See Stark [*18] Decl. ¶ 3.) The evidence proffered by Credit One to the contrary is insufficient to create a genuine issue of material fact as to whether the LiveVox system is a predictive dialer. Credit One cites principally to the testimony of EGS’s Corporate Designee, Andrew Balthaser, who stated that Quick Connect does not “operate as a predictive dialer” because “to my knowledge, the algorithm is not changing. It’s not adapting or predicting different things. It’s operating within guardrails that are established at the creation of a campaign.” (Balthaser Dep. 51:9-19.) However, when asked whether he knew if the LiveVox’s “algorithm or system has any predictive capabilities,” Balthaser responded that “only LiveVox has access to their algorithms to see how it paces or controls the number of calls launched,” thus admitting that he did not have personal knowledge of LiveVox’s predictive capabilities.7 (See Balthaser Dep. 100:16-101:8.) It is undisputed here that the Quick Connect feature of the LiveVox dialing system uses a proprietary algorithm to determine how many calls to automatically place in order to keep customer service representatives fully occupied at all times and that Quick Connect adjusts [*19] the number of calls that are automatically placed based on the number of available customer service representatives at any given time. (Pl. 56.1 St. ¶ 18-20, 22-24, 26-27.) These facts are consistent with the FCC’s definition of a predictive dialer as “an automated dialing system that uses a complex set of algorithms to automatically dial consumers’ telephone numbers in a manner that ‘predicts’ the time when a consumer will answer the phone and a telemarketer will be available to take the call.” (2003 Order at n.31.) Accordingly, the competent undisputed evidence establishes that LiveVox is an ATDS within the meaning of the TCPA, and Plaintiff is entitled to judgment as a matter of law on his claim for TCPA liability
Judge Swain also found that there was not a “reasonable reliance” defense to a wrong-number call placed under the TCPA.
Defendants contend that, even if LiveVox is an ATDS within the meaning of the TCPA, Plaintiff’s TCPA claim must still be dismissed because Credit One and EGS reasonably relied on the prior express consent of the individual who previously owned the Subject Number in placing the collection calls. Citing the FCC’s unchallenged interpretation in the 2015 Order of the term “called party” to include “individuals who might not be the subscriber, but who, due to their relationship to [*20] the subscriber, are the number’s customary user and can provide prior express consent for the call” (2015 Order at ¶ 75), Credit One argues that the Court should apply a similar “reasonable reliance approach” in creating a “common-sense exception to liability” for calls directed to new holders of reassigned cell phone numbers. Credit One’s argument finds no basis in the text of the TCPA, which only makes a caller’s intent relevant in connection with the trebling of damages. See Echevvaria v. Diversified Consultants, Inc., No. 13 Civ. 4980(LAK)(AJP), 2014 U.S. Dist. LEXIS 32136, 2014 WL 929275, at *4 (S.D.N.Y. Feb. 28, 2014) (“The TCPA is essentially a strict liability statute that does not require any intent for liability except when awarding treble damages.”) (internal quotation marks omitted).8 Nor is the FCC’s “reasonable reliance approach” in the customary user context sufficiently analogous to the reassigned number context to support the kind of expansive exception to liability Credit One advocates for here. The customary user whose consent provides a basis for reliance under the FCC’s 2015 Order interpretation is by definition someone who is a current, ongoing user of the relevant cell phone number. The reassignment of a number creates no relationship between the prior, consenting holder and the new holder. Thus, there is [*21] no reasonable basis for reliance on the original holder’s consent as indicative of consent by the new user. Indeed, in a portion of the 2015 Order that the ACA International court later rejected, the FCC observed that there was “no basis in the statute or the record before us to conclude that callers can reasonably rely on prior express consent beyond one call to reassigned numbers” (2015 Order ¶ 90 n.312), and framed a very limited “reasonable reliance approach” by providing only a one-call safe harbor for reassigned numbers. Accordingly, the Court declines Defendants’ invitation to recognize a reasonable reliance exception or defense that is inconsistent with the plain language of the statute.9