Telephone Consumer Protection Act

Elizabeth Panzarella v. Navient Solutions, LLC, No. 18-3735, 2020 WL 3250508 (E.D. Pa. June 16, 2020)

Two Plaintiffs filed suit relating to calls Defendant made when a relative’s loan became delinquent. Defendant moved for summary judgment on Plaintiffs’ Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) claims, arguing that the calls were not made using an Automatic Telephone Dialing System (“ATDS”). The TCPA prohibits, in part, calls to a person’s cell phone using an ATDS without their prior express consent. The TCPA defines an ATDS as “equipment that has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

Based on the facts before the Court, it concluded that Defendant’s dialing system did not have the present capacity to store or produce telephone numbers to be called using a random or sequential number generator, and was therefore, not an ATDS. Importantly, the numbers called were stored in an SQL server, which was separate from the dialing system, and uploaded from the SQL server to the dialing system to begin dialing campaigns. Also noteworthy to the Court was the far-reaching implications of holding that Defendant’s calling technology was an ATDS. Citing the D.C. Circuit Court of Appeals’ striking down of the FCC’s broad construction of what technologies constitute an ATDS in ACA Int’l v. FCC, the Court noted that:

One of the chief concerns of the D.C. Circuit was the “eye-popping sweep” of the FCC’s interpretation if every smart phone qualified as an ATDS because of its ability to download an application with the requisite features. Plaintiffs expert Randall Snyder, declares that, “Oracle and SQL Server[s] are among the two most popular enterprise database technology systems in use.” The widespread use of the Microsoft SQL servers, acknowledged even by Plaintiff motivates the Court to carefully consider whether it should be regarded a part of the same system. Holding that SQL is part of the [dialing system] risks a far-reaching and overly-broad interpretation of systems that may be considered by the TCPA.

The Court concluded, granting summary judgment because “Plaintiffs have introduced no evidence to suggest that the [dialing system] on its own is an ATDS. Instead, they agree that the Defendant used the SQL system to store and organize contact lists and imported those lists into the [dialing system] to initiate dialing campaigns.”