In Timms v. Usaa Fed. Sav. Bank, No. 3:18-cv-01495-SAL, 2021 U.S. Dist. LEXIS 108083, at *8 (D.S.C. June 9, 2021), Judge Lydon ruled against a TCPA plaintiff on whether an aspect dialer was an ATDS after Duguid. 

Defendant’s Motion submits that it is entitled to judgment as a matter of law on the TCPA claim because it did not use an ATDS when it phoned Plaintiff. [ECF No. 64.] As outlined in the Declaration of Michelle Deneen, Defendant used dialing equipment known as Aspect Unified IP (“Aspect UIP”) and Aspect Agent Initiated Contact (“Aspect AIC”) to phone Plaintiff. [ECF No. 64-1, Deneen Decl. at ¶ 5.] According to Defendant, neither are capable of generating random telephone numbers or generating sequential blocks of telephone numbers. Id. at ¶ 6. Defendant’s system works as follows:  • Telephone numbers of all members are stored in the Aspect Advanced List Management (“ALM”). Id. at ¶ 7.  • Each day, Defendant’s representative identifies accounts he or she wishes to call the next day based on different criteria, such as “account is overlimit, the period of delinquency, [or] the amount of debt.” Id. at ¶¶ 8, 9.  • ALM creates a list of telephone numbers for members matching those criteria. Id. at ¶ 9.  • The numbers are then transferred to Aspect UIP or Aspect AIC. Id. at ¶ 10. • Numbers are dialed from those pre-created lists. Id. at ¶ 11.  • If the Aspect UIP system is used, the Aspect UIP system dials the numbers. If a person answers, the call is connected to a live representative. Id.  • If the Aspect AIC system is used, the representative initiates the call to a specific number on the list. Id. at ¶ 12.  The difference between Aspect UIP and Aspect AIC is who initiates the call-the system itself (Aspect UIP) or a representative (Aspect AIC). Regardless, however, neither system “store[s] or produce[s] telephone numbers using a random or sequential number generator.” Id. at ¶ 13. Instead, both dial numbers from a specific list of numbers provided to them. Id.; [see also ECF No. 64-2 at p.9.] Given these characteristics, Defendant argues its systems do not qualify as ATDSs as a matter of law. Additionally, because Plaintiff’s training and supervision claims are premised on TCPA violations, Defendant argues those claims also fail. [ECF No. 64-2 at pp.11- 12.]  Plaintiff submits two arguments in response to Defendant’s position that the Aspect UIP and Aspect AIC are not ATDSs. First, Plaintiff argues the dialer at issue must only have the capacity to store or produce numbers using a random or sequential number generator, and Defendant’s internal documents establish that the Aspect UIP has that capacity. Second, Plaintiff relies on footnote 7 in the Duguid opinion to assert that the Aspect UIP has capabilities that render it an ATDS. According to Plaintiff, footnote 7 leaves open the possibility that the Aspect UIP’s ability to use a random number generator to determine the order in which numbers are dialed from a preproduced list may qualify it as an ATDS. The court addresses each, in turn, below and ultimately declines both arguments.