A federal court out of Nebraska recently issued a decision providing a decisive post-Facebook v. Duguid victory for a company using a predictive dialer.

In Grome v. USAA Savings Bank, No. 4:19-CV-3080, 2021 WL 3883713 (D. Ne. Aug. 31, 2021), Grome alleged that USAA made several unwanted calls to her cell phone to collect a debt she incurred through the use of a credit card issued by the bank. The bank did not dispute calling the plaintiff without her prior express consent. The parties disagreed, however, as to whether the bank used an automatic telephone dialing system (ATDS) as defined under the TCPA.

An ATDS is defined by the TCPA as “equipment which 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.” 47 U.S.C. § 227(a)(1). As we have previously discussed, the Supreme Court’s decision in Facebook clarified that unless the dialing equipment uses a random or sequential number generator, businesses will not be required to obtain prior written consent from the consumer before contacting them.  Under the Supreme Court’s recent interpretation, equipment that merely dials from a list, and does not incorporate the use of a random or sequential telephone number generator is not bound by the TCPA’s requirements to obtain prior express consent before making calls or sending text messages using an ATDS.

To make the calls to Grome, the bank used a predictive dialing system known as Aspect Unified IP (Aspect UIP). In order for Aspect UIP to initiate calls, the system had to be fed a specific list of telephone numbers by a USAA representative. Those lists, called “campaigns,” were generated using Aspect Advanced List Management (ALM)—a database containing telephone numbers provided by USAA members. Grome’s expert witness testified that Aspect UIP is a predictive dialer that “has the capacity to store or produce numbers to be called, using a random and sequential number generator, and it is equipment that dials telephone numbers from a stored list of numbers without human intervention.”

Grome’s expert also asserted that campaign lists loaded into the Aspect UIP can be “filtered, sorted, and re-sequenced” according to prescribed rules set by ALM and USAA. The expert conceded, however, that the Aspect UIP system was not capable of generating telephone numbers from whole cloth. Nevertheless, the expert asserted that ALM supports a database technology known as Microsoft SQL Server and that random number generation and sequential number generation “are functions inherent within the Microsoft SQL Server database technology used within the Aspect [UIP].” Based on this potentiality, the expert maintained that Aspect UIP is equipment which has “the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers,” as well as “the capacity to dial stored telephone numbers without human intervention.”

USAA’s expert countered, arguing that Aspect UIP with ALM is not an ATDS post-Facebook because it did not use a random or sequential number generator. The bank’s expert also disagreed that the Microsoft SQL Server gave Aspect UIP “inherent” power to be a random sequential number generator.    

The Court agreed with USAA. First, the Court determined that Aspect UIP did not use a random or sequential number generator at all because it simply re-sequenced numbers from an existing list. The Court also noted that Facebook explicitly rejected the argument that a device that stores numbers and then dials those numbers automatically is an ATDS. The Court found that the undisputed facts were that the Aspect UIP does not randomly or sequentially generate numbers from whole cloth and is not capable of dialing telephone numbers beyond those stored in the campaign lists uploaded by USAA. 

Second, the Court rejected Grome’s footnote 7-based argument from Facebook. That footnote, in relevant part, provides that:

[A]n autodialer might use a random number generator to determine the order in which to pick phone numbers from a pre-produced list. It would then store those numbers to be dialed at a later time. In any event, even if the storing and producing functions often merge, Congress may have “employed a belt and suspenders approach” in writing the statute.

The Court concluded that it was undisputed that Aspect UIP was not using a random number generator to determine the order in which to pick phone numbers. Moreover, the Court determined that Grome had taken the footnote out of context because it followed a sentence which explains that an autodialer could include “devices that used a random number generator to store numbers to be called later (as opposed to using a number generator for immediate dialing).”  And both parties agreed that was not what Aspect UIP had actually been programed to do.

Finally, the Court rejected Grome’s assertion that Aspect UIP qualifies as an ATDS because it has the capacity to store and produce telephone number using a random or sequential number generator. The Court reasoned that although neither the Supreme Court nor the Eighth Circuit has specifically addressed what “capacity” means in the TCPA’s definition of automatic telephone dialing system, other courts agree that the term refers to present capacity. The court found that the undisputed evidence was that Aspect UIP does not have the present capacity to use a random or sequential number generator to produce or store telephone numbers. Notably, the court concluded that even if the system could be programmed to generate random or sequential numbers, “that would be introducing autodialer functionality into the Aspect UIP where it doesn’t currently exist.” And, in any event, there was no evidence USAA had ever actually taken those steps prior to calling Grome.