In light of this ruling, the Court will not stray from the statute’s language which “mandates that the focus be on whether the equipment has the “capacity ‘to store or produce telephone numbers to be called, using a random or sequential number generator.’ ” Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009) (quoting 47 U.S.C. § 227(a)(1) (emphasis in original)). CBE places calls by using a Manual Clicker Application (“MCA”), which is web-based software by which a CBE agent clicks a bull’s-eye on a computer screen and a call is placed. (Johnson Dep. 37:8–21, Ex. 4 to Pl.’s Resp., ECF No. 54–6). The MCA works in conjunction with LiveVox, a cloud-based connectivity pass-through. (Snyder Suppl. Decl. ¶¶ 70–71, Ex. 1 to Pl.’s MSJ, ECF No. 33–3). Once a CBE agent clicks the bull’s-eye, a call is passed through LiveVox’s cloud connecting a CBE agent with the person to whom the call is placed. (Johnson Dep. 50:1–14); (Stark Dep. 11:23–25, ECF No. 35–1). The parties characterize the interplay between the MCA and LiveVox differently and, accordingly, dispute whether an ATDS was used. CBE primarily relies upon the opinions of Terry Johnson, Enterprise Architect for CBE, and Kevin Stark, the Director of Product Management for LiveVox. (CBE’s Resp. to Pl.’s MSJ (“CBE’s Resp.”), 8:23–26, ECF No. 45); (see also CBE’s Reply to Pl.’s Resp. (“CBE’s Reply”) 8:1–3, ECF No. 56). According to Johnson, once a CBE agent “initiate[s] the calls, the calls are immediately dialed. There is no delay or queuing or listing or batching.” (Johnson Dep. 48:17–19, Ex. C to CBE’s Resp., ECF No. 45–4). Johnson further asserts “the dialing of calls is entirely controlled manually by the MCA. The MCA then uses a LiveVox system to connect to a public switched telephone network.” (Johnson Dep. 196:2–197:5); (Johnson Aff. ¶ 3, Ex. A to CBE’s Resp., ECF No 45–2). Stark states that the LiveVox system in this case “does not feature telephone call initiation functionality,” and that LiveVox does not “initiate any of the calls made by CBE using the MCA and the Technology.” (Stark Aff. ¶ 9, Ex. B to CBE’s Resp., ECF No. 45–3). Stark acknowledges that, while LiveVox does produce dialing systems that could constitute an ATDS, the specific LiveVox system used in the instant case was designed to only launch calls through manual dial requests and is without the potential to autodial. (Id. ¶¶ 9–17); (see also Stark Dep. 11:15–17, ECF No. 35–1). Plaintiff characterizes the MCA as “provid[ing] numbers for automatic dialing by a third party, LiveVox.” (Pl.’s MSJ 6:5–6). Plaintiff relies on the expert opinion of Randall Snyder, whose conclusions have been called into question by CBE. (See generally Mot. to Strike). Snyder asserts that the “MCA is really designed to perform the function of providing telephone numbers to a dialing system, one at a time by clicking an icon (i.e., the bulls-eye).” (Snyder Suppl. Decl. ¶ 98). Therefore, “[t]he clicker agent who is clicking the bulls-eye on the MCA is not performing any type of dialing process; rather, the clicker agent is simply causing a telephone number to be supplied to the LiveVox system to be automatically dialed by that system.” (Id. ¶ 119). The parties do not appear to dispute that the MCA, by itself, does not qualify as an ATDS. (Snyder Dep. 100:24–101:4, Ex. E to CBE’s Resp., ECF No. 45–5); (Johnson Aff. ¶ 4). The dispute is whether the MCA, in conjunction with the LiveVox system, constitutes an ATDS. (Pls.’s MSJ 16:22–17:4). As to the LiveVox system in this case, Plaintiff has failed to establish a genuine issue of material fact as to whether LiveVox has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator. While Snyder comes to the ultimate legal conclusion that LiveVox has the “capacity to store or produce telephone numbers to be called, using a random or sequential generator,” his premises do not support this contention. (Snyder Suppl. Decl. ¶ 129).5 Specifically, Snyder bases his conclusion on the fact that LiveVox maintains call log records which include timestamps for outgoing calls and contain “CallType” and “Call_Result” fields. (Snyder Suppl. Decl. ¶¶ 89–92); (See Pl.’s MSJ 10:9–10) (“Evidence on the face of call log records produced in this case also demonstrate that it is LiveVox who initiates the call.”). According to Snyder, LiveVox’s ability to perform call progress analysis “implies that CBE is not initiating the call but LiveVox is.” (Snyder Suppl. Decl. ¶ 93). The Court agrees with CBE that there is no evidence, or legal authority, suggesting that LiveVox’s ability to track calling information means that the system has the capacity to store or produce numbers to be called using a random or sequential number generator. (CBE’s Resp. 13:9–13); see alsoBiel v. Bloomingdale’s, Inc., No. 8:15–cv–01810–JLS–DFM, 2016 WL 7655742, at *3 (C.D. Cal. June 23, 2016) (“[T]he proffered call log fails to provide any evidence that Defendant’s system ‘has the capacity to randomly or sequentially generate telephone numbers to be stored, produced, or called’ ….”) (emphasis in original). Snyder also concludes that the LiveVox system is an ATDS because it operates as a predictive dialer, a function which the FCC concluded in the 2015 FCC Order, as well as in previous orders, could render a system an ATDS. (Pl.’s Resp. 19:15–18, ECF No. 54). In those rulings, the FCC found that an ATDS could include technology that dials from “a fixed set of numbers,” rather than only systems that have the capacity to dial randomly or sequentially.6See 2015 FCC Order, 30 F.C.C.R. at 7973; see also 2003 FCC Order, 18 F.C.C.R. at 14092–93. As discussed supra, the D.C. Circuit explicitly rejected this “expansive” interpretation of the TCPA, particularly as that definition pertained to systems that may not, in fact, have the capacity to dial randomly or sequentially. SeeACA Int’l, 2018 WL 1352922, at *11–12. Accordingly, Plaintiff cannot rely on the FCC’s definition of an ATDS to the extent it includes systems that cannot be programmed to dial random or sequential numbers, as is the case with some predictive dialers. Id. at *11.
Plaintiff argues that notwithstanding the ACA Int’l ruling, the 2015 FCC Order, as well as the 2003 FCC Order, remains binding on this Court. (See Pl.’s Suppl. Br. 9:20–21, ECF No. 59). Even assuming, arguendo, that Plaintiff is correct, these interpretations have repeatedly emphasized the significance of the “human intervention” element to the ATDS analysis. See 2015 FCC Order, 30 F.C.C.R. 7961, 7974; 2003 FCC Order, 18 F.C.C.R. 14014, 14029. The Court notes that that the overwhelming weight of authority applying this element hold that “point-and-click” dialing systems, paired with a cloud-based pass-through services, do not constitute an ATDS as a matter of law in light of the clicker agent’s human intervention. See, e.g., Strauss v. The CBE Grp., Inc., 173 F. Supp. 3d 1302, 1310–11 (S.D. Fla. 2016) (granting summary judgment because “CBE has presented substantial evidence that human intervention is essential at the point and time that the number is dialed using the MCA and that the Noble equipment used does not have the functionalities required to classify it as a predictive dialer ….”); Pozo v. Stellar Recovery Collection Agency, Inc., No. 8:15–cv–929–T–AEP, 2016 WL 7851415, at *4 (M.D. Fla. Sept. 2, 2016); (“As in Strauss, Stellar’s clicker agents initiate all calls by clicking a dialogue box …. Most importantly, [LiveVox HCI] does not allow any calls to be made without a Stellar agent clicking the dialogue box to initiate the call.”); Smith v. Stellar Recovery, Inc., No. 2:15–cv–11717, 2017 WL 955128, at *3 (E.D. Mich. Mar. 13, 2017); (“[T]he HCI system is characterized by one key factor that separates it from autodialers; it requires human intervention—the clicker agent—to launch an outgoing call. Since the ‘basic function’ of an autodialer is the capacity to dial phone numbers ‘without human intervention,’ and the HCI system lacks that capacity, the HCI is not an autodialer.”); Arora v. Transworld Sys., Inc., No. 15–cv–4941, 2017 WL 3620742, at *1, *3 (E.D. Ill. Aug. 23, 2017); (“Each call initiated from a Human Call Initiator must be initiated by a human ‘clicker agent.’ … Because all calls from TSI were made with human intervention, and not with an ATDS, Arora’s TCPA claim fails as a matter of law.”). Here, as in those cases, it is undisputed that human intervention, by virtue of CBE’s “clicker agents,” is integral to initiating outbound calls. (See Snyder Suppl. Decl. ¶ 98); (Johnson Dep. 37:8–21). Therefore, to the extent the FCC’s previous orders remain intact, the human intervention element weighs in favor of a finding that the MCA, in conjunction with LiveVox, is not an ATDS. . . .CBE has introduced competent evidence demonstrating that the MCA is initiating the calls and that the LiveVox system used in this case does not have the capacity to operate as an ATDS. (See, e.g., Johnson Dep. 196:2–197:5); (Stark Aff. ¶ 9). Accordingly, Plaintiff’s Motion for Partial Summary Judgment, (ECF No. 33), is denied. CBE’s Motion for Summary Judgment, (ECF No. 39), on Plaintiff’s TCPA claim, is granted.
The District Court allowed part of the FDCPA claim to proceed. The District Court found that the number and pattern of calls might be actionable.
However, there is no bright-line rule concerning the amount or pattern of calls sufficient to raise a triable issue of fact regarding the intent to annoy, harass, or oppress. See id. (citing Arteaga, 733 F. Supp. 2d at 1227). Rather, “[w]hether conduct is annoying, abusive, or harassing generally is a fact question for the jury.” Id. Here, viewing the facts in a light most favorable to Plaintiff, the Court finds that a reasonable jury could conclude that CBE placed the calls with an intent to annoy, abuse, or harass. CBE placed one hundred eighty–nine calls between August of 2015, and February of 2016. (Johnson Dep. 190:18–192:13); (CBE Records at 27–46). Plaintiff testified that she had received more than two calls in one day during this period. (Marshall Dep. 25:11–13). According to Plaintiff, she requested that the calls cease in August of 2015, and again on September 8, 2015. (Id. 16:9–1); (Johnson Dep. 144:9–146:19). Plaintiff placed an inbound call to CBE expressing her desire that the calls stop on August 18, 2015. (Johnson Dep. 143:14–144:3). In addition, CBE placed ten calls to Plaintiff’s place of employment between September 18, 2015, and September 22, 2015. (Id. 147:2–19). Plaintiff further testified that CBE agents “never actually clarified why they were calling.” (Marshall Dep. 27:7–13). Based on these facts, the Court finds there is a genuine issue of material fact as to whether CBE’s conduct violated the FDCPA. Accordingly, the Court denies CBE’s Motion for Summary Judgment on Plaintiff’s § 1692d claim.
The District Court found, however, that a claim of unfair debt collection under the FDCPA “general” provision must be tethered to a practice that is not otherwise covered by a specific provision of the FDPCA.
While the District of Nevada has not addressed the precise issue, courts in this Circuit have recognized that a cause of action is deficient under § 1692f “if it does not identify any misconduct beyond which plaintiffs assert violate other provisions of the FDCPA.” Thomas v. Loomis–Therrien, No. 5:14–cv–00979–CAS–JC, 2014 WL 5335913, at *6 (C.D. Cal. Oct. 20, 2014) (citation omitted); Amina v. WMC Mortg. Corp., No. 10–cv–00165–JMS–KSC, 2011 WL 1869835, at *16 (D. Haw. May 16, 2011) (“[A] plaintiff must base violations of §§ 1692e & 1692f on conduct other than that already identified in other sections of the FDCPA.”); Masuda v. Thomas Richard & Co., 759 F. Supp. 1456, 1461 n.10 (C.D. Cal. 1991) (“Congress employed general language to ‘enable the courts, where appropriate, to proscribe … improper conduct which is not specifically addressed.”) (citation omitted). Courts in other Circuits have recognized a “growing consensus … that a claim under § 1692f must be based on conduct either within the listed provisions, or be based on conduct which falls outside of those provisions, but which does not violate another provision of the FDCPA.” Osborn v. Ekpsz, LLC, 821 F. Supp. 2d 859, 878 (S.D. Tex. 2011) (“Section 1692 serves a backstop function, catching those ‘unfair practices’ which somehow manage to slip by §§ 1692d & 1692e.”); see also Vanhuss v. Kohn Law Firm S.C., 127 F. Supp. 3d 980, 990–91 (W.D. Wis. Sept. 1, 2015); Strouse v. Enhanced Recovery Co., 956 F. Supp. 2d 627, 637 (E.D. Pa. 2013); Stewart v. Bierman, 859 F. Supp. 2d 754, 765 (D. Md. 2012); Foti v. NCO Fin. Sys., Inc., 424 F. Supp. 2d 643, 667 (S.D.N.Y. 2006). Here, Plaintiff concedes that her allegation pursuant to § 1692f is based on the same conduct as her claim under § 1692d. (See Pl.’s Resp. 28:16–17) (“For the same reasons as provided in connection with Plaintiff’s Section 1692d claim, her Section 1962f claim should reach a jury.”); (see also Pl.’s Compl. ¶ 62) (“[CBE’s] conduct violated 15 U.S.C. § 1692f in that [CBE] use unfair and unconscionable means to collect a debt and attempted to humiliate and belittle Plaintiff.”). Because Plaintiff does not allege, or argue, any § 1692f violation that is independent of Plaintiff’s § 1692d claim, this cause of action fails as a matter of law. CBE is entitled to summary judgment on Plaintiff’s § 1692f claim.