Thompson-Harbach v. USAA Federal Sav. Bank, 359 F. Supp. 3d 606

Plaintiff (USAA cardholder) received repeated collection calls to her cellular number (ending 9507) after granting contact consent in an online account agreement.
Defendant used Aspect and (vicariously) an Interaction dialer to call numbers from stored campaign lists; neither dialer could generate random or sequential numbers.
Plaintiff alleges she orally revoked consent during August 2015 calls; defendant’s records confirm at least one oral request (Aug. 13) but dispute others.
Online Agreement stated a consumer could revoke authorization by editing their profile to remove numbers (“you may edit your profile…”); defendant’s internal policy (not provided to customers) allowed oral revocation.
Parties filed cross-motions for summary judgment; the Court treated ACA International as controlling precedent on deference issues but ultimately construed the TCPA independently on the ATDS definition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant called plaintiff’s cellular phone	Yes; plaintiff identified the number as her cell	Defendant admits calling the number but disputes it was a cell (no evidence)	Held for plaintiff: number was plaintiff’s cellular phone (no genuine dispute)
Whether the dialers used qualify as an ATDS under 47 U.S.C. § 227(a)(1)	Predictive dialers that call from stored lists are ATDSs (relies on FCC predictive‑dialer rulings)	Only devices that can generate and then dial random or sequential numbers are ATDSs; these dialers lack that capacity	Held for defendant: devices were not ATDSs because they lacked capacity to generate random/sequential numbers and then dial them
Whether plaintiff validly revoked prior consent orally	Oral revocation is reasonable and effective; Online Agreement’s “may” language does not preclude oral revocation	Contractual revocation procedure controls if reasonable; Online Agreement requires removing the number online	Held: Parties may agree to reasonable revocation procedures, but the Agreement’s language did not exclusively bar oral revocation; oral revocation can be effective
Whether summary judgment is appropriate	Plaintiff sought judgment that TCPA was violated after revocation	Defendant moved for judgment that no ATDS was used and thus no TCPA violation	Held: Summary judgment granted for defendant because plaintiff cannot satisfy ATDS element; plaintiff’s motion denied

ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (vacated the FCC's broad 2015 ATDS interpretation and required courts to reassess ATDS scope)
Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (U.S. 2012) (TCPA jurisdiction and purpose described)
Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018) (statutory reading that ATDS requires capacity to generate random/sequential numbers supports limiting ATDS scope)
Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) (contrasting view that predictive dialers dialing from lists can be ATDSs)
Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment burden principles relied upon by the court)