17 F. Supp. 3d 1215
S.D. Fla.2014Background
- Angela Lardner obtained a new Verizon cell number (ending 1705) after leaving T‑Mobile; she did not give that number to T‑Mobile.
- T‑Mobile alleged she owed a balance and retained Diversified Consultants, Inc. to collect the debt; Diversified obtained a number for Lardner via skip‑trace.
- Diversified used LiveVox, a cloud-based dialing platform, in campaign/preview/manual modes; LiveVox stored daily uploaded lists and played an IVR prerecorded prompt that asked the recipient to press 1 or 2.
- Call logs show Diversified placed 126 campaign/manual‑blend calls (132 total) to Lardner on weekdays between 8:00 A.M. and 8:00 P.M.; plaintiff did not ask callers to stop.
- Cross‑motions for summary judgment addressed TCPA, FDCPA, and FCCPA liability; court granted summary judgment to plaintiff on TCPA claim and to defendant on FDCPA and FCCPA claims, awarding $63,000 (126 calls × $500).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether LiveVox is an ATDS under the TCPA | LiveVox stores preprogrammed lists and automatically dials from them, meeting ATDS definition | LiveVox lacks a random/sequential number generator and only temporarily stores numbers; statute is clear and narrower | LiveVox is an ATDS; FCC interpretation (including predictive dialers and preprogrammed lists) is reasonable and entitled to Chevron deference |
| Whether prerecorded/"artificial" voice was used | The LiveVox IVR plays prerecorded prompts, so calls used prerecorded voice | LiveVox provided the voice files, not Diversified, so Diversified did not "use" prerecorded voice | Court found prerecorded voice was used; liability under this theory not necessary to decide TCPA claim but would also support plaintiff |
| Whether Diversified can be held liable when LiveVox processes/launches calls | Diversified initiated calls by pressing "next call" and its collectors connected to calls, so it "made" the calls | Diversified contends LiveVox/SIP/carriers actually launched calls, insulating Diversified from TCPA liability | Diversified is liable; a caller that uses LiveVox to place automated calls can be held responsible |
| Whether plaintiff gave prior express consent to receive calls | Lardner did not have the 1705 number while with T‑Mobile and did not provide it to T‑Mobile | Diversified says number came from T‑Mobile (or skip‑trace) and thus consent may exist | No evidence T‑Mobile obtained the 1705 number from Lardner in connection with the debt; Diversified failed to prove prior express consent |
Key Cases Cited
- Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768 (11th Cir. 2011) (TCPA is essentially strict liability)
- Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir. 2012) (predictive dialers/automated systems qualify as ATDS)
- Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009) (FCC rules inform TCPA application to new technologies)
- Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (prior Fifth Circuit decisions are binding precedent in the Eleventh Circuit)
- Mais v. Gulf Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226 (S.D. Fla. 2013) (debt collector using similar software liable under TCPA)