In Nelson v. Santander Consumer USA, Inc., — F.Supp.2d —-, 2013 WL 1141009 (W.D.Wis. 2013), Judge Snyder found that ‘preview dialing’ triggered the TCPA. The facts were as follows:
Beginning in March or April 2010 defendant Santander Consumer USA, Inc., an automobile finance company, began making calls to 608–512–xxxx in an attempt to collect the debt from those loans. At some point, defendant purchased HSBC Auto Credit, including plaintiff’s loans. (The parties dispute whether defendant began its efforts to collect the debt before it purchased HSBC.) The number defendant called belonged to a cellular phone that plaintiff used and paid for, but only the name of plaintiff’s husband appears on the monthly bill. Plaintiff had not included that cell phone number in her loan application documents. In the calls to plaintiff, defendant “demanded” that she make payments on her loan. (The parties dispute whether plaintiff had defaulted on her loans or was behind on her payments.) Some of the messages were recordings. ¶ In making these calls, defendant used the Aspect telephony system, a computer telephone software system that routes and places inbound and outbound calls. Aspect has the capacity to (1) store telephone numbers and then call them; and (2) perform “predictive dialing” and “preview dialing.” ¶ In predictive dialing, the system times the dialing of numbers using an algorithm to predict when an agent will become available to receive the next call. To facilitate that method of dialing, defendant created lists of customer telephone numbers to be called on a particular day. In preview dialing, an employee chooses a telephone number by clicking on a computer screen and the system calls it. Defendant’s employees never called plaintiff by pressing numbers on a keypad.
The District Court found that the Plaintiff was the ‘called party’ under the TCPA, even though the bill was only in her name.
Defendant argues that the “called party” identified in § 227 means the person listed on the phone bill and that plaintiff has not shown that she has “standing” to sue for a violation of § 227(b)(1)(A)(iii) because her husband is the only one listed on the bill for the cell phone defendant called. Defendant’s argument is imaginative but not persuasive. ¶ To begin with, defendant has made the common mistake of confusing the issue of standing with a plaintiff’s entitlement to relief. […] plaintiff has standing if she was injured by the defendant’s conduct and her injury can be redressed by winning her lawsuit. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). In this case, plaintiff says that she received more than 1000 calls from defendant on the cell phone she used and she is seeking damages for that alleged harassment, so there is no question that she has standing. ¶ The real question presented by defendant is not whether plaintiff has standing, but whether she has a right to sue for violations of § 227. Defendant cites Soppet v. Enhanced Recovery Co., LLC, 679 F .3d 637, 643 (7th Cir.2012), for the proposition that the phrase “ ‘called party’ in § 227(b)(1) means the person subscribing to the called number at the time the call is made.” Because plaintiff was not listed on the cell phone bill, defendant argues, she is not a subscriber and cannot sue. ¶ Defendant’s argument is a red herring because Soppet was not about the parties who could sue for a violation of § 227; it was about the parties who had authority to give consent to call the cell phone number at issue. In particular, the court was asked to construe the provision that allows calls “made with the prior express consent of the called party.” 47 U.S.C. § 227(b)(1). The defendant had received express consent from its customer to be called at the cell phone number, but the defendant continued using automatic dialing to call that number even after it was later reassigned to someone else who was not a customer and had not given consent. Soppet, 679 F.3d at 639. The defendant argued that the phrase “called party” should be construed to mean “intended recipient” so that a customer’s consent remained valid even after a number was assigned to someone else, at least until consent was withdrawn. Id. at 640. The court rejected that argument, concluding that “[c]onsent to call a given number must come from its current subscriber.” Id. at 641. Thus, Soppet does not limit the scope of liability; it limits a potential defense to liability. ¶ Nothing in § 227(b)(1) limits the protections of the statute to the owner of the phone. Rather, that section prohibits the use of automatic dialing “to any telephone number assigned to a … cellular telephone service” regardless who answers or receives the call. Further, 47 U.S.C. § 227(b)(3), which creates a private right of action for violations of the statute, does not limit lawsuits to those brought by “subscribers” or “called parties,” but applies to “a person or entity.” See also D.G. v. Diversified Adjustment Service, Inc., 2011 WL 5506078, *2 (N.D.Ill.2011) (“Nothing in [§ 227(b)(3) ] indicates that a private right of action is limited to the ‘called party.’ ”). Accordingly, I conclude that it is irrelevant to plaintiff’s claim under § 227 whether she or her husband was listed on the phone bill.
After concluding that, for procedural reasons, the defendant had waived its right to argue consent, the District Court turned to whether the defendant used an ATDS. The District Court found that it did not matter whether the calls were generated by the ATDS or were pursuant to ‘preview dialing’; i.e. manually generated calls.
Defendant’s final argument regarding liability is that plaintiff has failed to show which calls it made to her through predictive dialing and which calls it made through “preview dialing,” in which an employee rather than the system chooses which number to dial. Regardless whether preview dialing falls outside the scope of § 227(a)(1) and the FCC’s order, I agree with plaintiff that defendant’s argument is another red herring. Under both the statute and the order, the question is not how the defendant made a particular call, but whether the system it used had the “capacity” to make automated calls. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir.2009) ( “[A] system need not actually store, produce, or call randomly or sequentially generated numbers, it need only have the capacity to do it.”). Because it is undisputed that Nightengale’s testimony establishes that capacity, I conclude that plaintiff is entitled to summary judgment on this claim.