O'Shea v. American Solar Solution, Inc.

Filing 146

ORDER denying 142 Motion for Leave to File a second motion for summary judgment. Signed by Judge M. James Lorenz on 7/2/2018. (sjt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KERRY O'SHEA,

Case No.: 3:14-cv-00894-L-RBB
Plaintiff,

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v.

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ORDER DENYING DEFENDANT’S
EX PARTE MOTION FOR LEAVE
TO FILE A SECOND MOTION FOR
SUMMARY JUDGMENT

AMERICAN SOLAR SOLUTION, INC.,
Defendant.

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Pending before the Court is Defendant American Solar Solution, Inc.’s

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(“Defendant”) ex parte motion for leave to file a second motion for summary judgment.

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(Mot. [Doc. 140].) Pursuant to Civil Local Rule 7.1(d)(1), the Court decides the matter

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on the papers submitted and without oral argument. For the reasons stated below, the

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Court DENIES Defendant’s motion.

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3:14-cv-00894-L-RBB

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I.

BACKGROUND

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This case is a class action alleging Defendant American Solar Solution, Inc.

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(“Defendant”) violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §

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227 et seq., by using an automatic telephone dialing system (“ATDS”) to place

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telemarketing calls to cell phones. Defendant is in the business of selling solar energy

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equipment to residential and commercial customers. To market its products and services,

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Defendant used a ViciDial predictive dialer to contact phone numbers uploaded into the

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dialer. Defendant purchased these telephone numbers from several different companies

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that sell lists of phone numbers that connect to members of a population meeting certain

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demographic criteria. Per Plaintiff’s expert’s report, Defendant made 897,534 calls to

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220,007 different cell phone numbers. Defendant has no evidence indicating any of the

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alleged call recipients provided prior express consent to receive these calls.
Defendant placed fifteen calls to named Plaintiff Kerry O’Shea’s (“Plaintiff”) cell

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phone. Accordingly, Plaintiff filed a class action complaint alleging Defendant’s conduct

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violated the TCPA. Since filing, Plaintiff has survived a motion for summary judgment,

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two motions to dismiss, and achieved class certification. The discovery and motion filing

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cutoff dates have both passed. During discovery, Defendant repeatedly stipulated to the

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fact that the ViciDial predictive dialer it used to place the calls at issue was an ATDS for

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purposes of the TCPA. (See Marron Decl. [Doc. 143-1].) In the jointly proposed pretrial

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order submitted to the Court on October 9, 2017, Defendant stipulated that “it used

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ViciDialer predictive dialers which are known [ATDSs] to place the calls to Plaintiff and

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members of the Class between November 22, 2012 and August 22, 2015.” Defendant

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now seeks leave to file a second motion for summary judgment arguing that the

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ViciDialer predictive dialer is not an ATDS. Plaintiff opposes.

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3:14-cv-00894-L-RBB

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II.

DISCUSSION
Use of an ATDS is an essential element of a TCPA claim. 47 U.S.C. § 227

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(b)(1)(A)(iii). Defendant contends that ACA Int’l v. Federal Communications

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Commission, 885 F.3d 687 (D.C. Cir. 2018) changed the definition of an ATDS such that

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Defendant’s ViciDial predictive dialer no longer triggers it.

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The TCPA broadly defines an ATDS as “equipment which has the capacity (A) to

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store or produce telephone numbers to be called, using a random or sequential number

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generator; and (B) to dial such numbers.” 47 U.S.C. § 227 (1). Congress charged the

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Federal Communications Commission (“FCC”) with implementation of the TCPA and, to

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this end, gave it rulemaking authority. 47 U.S.C. § 227(b)(2). Pursuant to this authority,

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the FCC has issued a number of orders clarifying what type of equipment qualifies as an

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ATDS.

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Germane to the present motion are two positions taken by the FCC. The first

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position is that a predictive dialer is an ATDS. In re Rules & Regulations Implementing

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the Telephone Consumer Protection Act of 1991, 18 FCC Rcd. 14014, 14093 (2003)

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(“2003 FCC Order”); In the Matter of Rules and Regulations Implementing the Telephone

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Consumer Protection Act of 1991, 23 FCC Rcd. 559, 566 (2008) (“2008 FCC Order”). A

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predictive dialer is “an automated dialing system that uses a complex set of algorithms to

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automatically dial consumers' telephone numbers in a manner that ‘predicts’ the time

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when a consumer will answer the phone and a telemarketer will be available to take the

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call.” In re Rules & Regulations Implementing the Telephone Consumer Protection Act

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of 1991, 18 FCC Rcd. at 14143 n. 31. In its 2003 Order, the FCC made clear that “while

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some predictive dialers cannot be programmed to generate random or sequential phone

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numbers, they still satisfy the statutory definition of an ATDS. ACA, 885 F.3d at 702

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(citing the 2003 FCC Order).

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In 2015, the FCC took a position on the meaning of the word “capacity” as used in

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the TCPA. In the Matter of Rules and Regulations Implementing the Telephone

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Consumer Act of 1991, 30 FCC Rcd. 7961 (2015) (“2015 Order”). Specifically, the FCC
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3:14-cv-00894-L-RBB

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held that equipment need not have the present capacity to function as an autodialer to

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trigger the TCPA. Id. at 7974. Rather, it was sufficient if equipment had the potential

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capacity to be configured with autodialing functions. Id. The DC Circuit Court of

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Appeals invalidated this specific provision of the FCC’s 2015 Order, reasoning it was

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impermissibly expansive inasmuch as it would sweep even smart phones under the

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definition of an ATDS. ACA, 885 F.3d at 700.

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The ACA decision is unhelpful to Defendant because Plaintiff is not arguing that

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the ViciDial predictive dialer is an ATDS because it could be configured with autodialing

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functions. Rather, Plaintiff has submitted undisputed evidence establishing that the

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ViciDial predictive dialer was in fact presently configured as a predictive dialer. (Hansen

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Decl. [Doc. 116-7] ¶ 24.) The ACA decision left intact the holding of both the FCC’s

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2003 and 2008 Order that an autodialer is an ATDS. Swaney v. Regions Bank, 2018 WL

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2316452 *1 (N.D. Ala. 2018); Reyes v. BCA Fin. Servs., 2018 WL 2220417 (S.D. Fla.

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2018). It follows that the ViciDial predictive dialer is an ATDS.

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III.

CONCLUSION & ORDER
For the foregoing reasons, the Court DENIES Defendant’s ex parte motion for

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leave to file a second motion for summary judgment. A scheduling order setting trial and

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related dates will issue shortly. In the meantime, the parties are ordered to contact the

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chambers of the Honorable Ruben B. Brooks no later than July 6, 2018 to arrange for an

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in person settlement conference.

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IT IS SO ORDERED.

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Dated: July 2, 2018

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3:14-cv-00894-L-RBB