The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DENISE DENOVA,
Plaintiff,
v. CASE NO. 8:17-cv-2204-T-23AAS
OCWEN LOAN SERVICING,
Defendant.
____________________________________/
ORDER
Denise DeNova alleges (Doc. 2) that between April 2013 and May 2016,
Ocwen Loan Servicing, attempting to collect DeNova’s delinquent mortgage, used
an “Aspect predictive dialing system” to call DeNova’s cellular telephone 1,645
times. (Doc. 67-4) DeNova sues Ocwen (1) under the Telephone Consumer
Protection Act (TCPA), which prohibits “using any automatic telephone dialing
system or an artificial or prerecorded voice” to call a cellular telephone (Count VII)
and (2) under the Florida Consumer Collection Practices Act (FCCPA) and the Fair
Debt Collection Practices Act (FDCPA), both of which prohibit a debt collector from
employing abusive or harassing collection tactics (Counts I–II, V–VI) and from
attempting to collect a debt from a person represented by an attorney (Counts
III–IV). DeNova and Ocwen move (Docs. 42, 43) for summary judgment.
A July 26, 2019 report and recommendation (Doc. 85) finds (1) that Ocwen’s
Aspect system constitutes an “automatic telephone dialing system;” (2) that Ocwen
152 times called DeNova using a “prerecorded voice” under the TCPA; (3) that the
FDCPA’s one-year statutory limitation bars DeNova from recovering for the 1,374
calls placed before February 1, 2016, and that the FCCPA’s two-year statutory
limitation bars DeNova from recovering for the 815 calls placed before February 1,
2015; and (4) that a genuine factual dispute remains about whether Ocwen called
with a harassing frequency, whether Ocwen knew DeNova had retained an attorney,
and whether DeNova revoked consent to receive debt-collection calls. Accordingly,
the July 26 report recommends granting-in-part Ocwen’s motion for summary
judgment and denying DeNova’s motion for summary judgment. (Doc. 85 at 36–37)
DISCUSSION
Ocwen’s TCPA Objection
Ocwen objects (1) that ACA International v. FCC, 885 F.3d 687 (D.C. Cir.
2018), invalidates the declaratory rulings on which the report relies and (2) that
— assuming the invalidity of the FCC regulations — Ocwen’s Aspect system does
not constitute an automatic telephone dialing system under the TCPA.
i. Whether ACA International invalidates the FCC’s interpretation of an ATDS
Under 47 U.S.C. § 227(b)(1)(A)(iii), a person may not “make any call . . .
using any automatic telephone dialing system or an artificial or prerecorded voice . . .
to any . . . telephone number assigned to a . . . cellular telephone service.”
Section 227(a)(1) defines an “automatic telephone dialing system” (ATDS) 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.”
Section 227(b)(2) grants the FCC the authority to promulgate regulations
implementing the TCPA. In a 2003 declaratory ruling, the FCC defined ATDS to
include a “predictive dialer,” described as “equipment that dials numbers and, when
certain computer software is attached, also assists telemarketers in predicting when a
sales agent will be available to take calls.” 18 FCC Rcd. 14014, 14091–92. A
predictive dialer, such as Ocwen’s Aspect system, employs an algorithm “to ensure
that when a consumer answers the phone, a sales person is available to take the call.”
18 FCC Rcd. 14014, 14091–92. However, a predictive dialer lacks the capacity to
generate telephone numbers and instead calls from a pre-determined list. The
2003 declaratory ruling finds that, because a predictive dialer can automatically “dial
thousands of numbers in a short period of time,” the exclusion of a predictive dialer
from the definition of an ATDS “would lead to an unintended result.” 18 FCC Rcd.
14014, 14092. Accordingly, the 2003 declaratory ruling concludes that a predictive
dialer constitutes an ATDS even if unable to generate random telephone numbers.
18 FCC Rcd. 14014, 14092.
In 2008 the FCC affirmed the 2003 declaratory ruling. 23 FCC Rcd. 559, 566.
And in 2015 the FCC affirmed both the 2003 and 2008 declaratory rulings and “the
notion that a device can be considered an autodialer even if it has no capacity itself
to generate random or sequential numbers (and instead can only dial from an
externally supplied set of numbers).” 30 FCC Rcd. 7961, 7971–72.
Addressing a consolidated challenge1 to the 2015 declaratory ruling, ACA
International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) (Srinivasan, J.), holds that the
ruling contains contradictory guidance and vacates as arbitrary and capricious the
FCC’s determination about the capacity a system must possess to constitute an
ATDS. The 2003, 2008, and 2015 declaratory rulings state that to constitute an
ATDS a system must “generate and then dial ‘random or sequential numbers.’”
However, the 2003, 2008, and 2015 declaratory rulings state elsewhere that a
predictive dialer constitutes an ATDS even if unable to generate random or
sequential numbers. Analyzing this conflicting guidance, ACA International
concludes:
So which is it: does a device qualify as an ATDS only if it can generate
random or sequential numbers to be dialed, or can it so qualify even if
it lacks that capacity? The 2015 ruling, while speaking to the question
in several ways, gives no clear answer (and in fact seems to give both
answers). It might be permissible for the Commission to adopt either
interpretation. But the Commission cannot, consistent with reasoned
decisionmaking, espouse both competing interpretations in the same
order.
ACA International, 885 F.3d at 703. Accordingly, ACA International “set[s] aside the
[FCC’s] treatment of those matters.”
1 The weight of authority considers binding the decision of a circuit court resolving a
consolidated challenge to an FCC ruling. Gonzalez v. Ocwen Loan Servicing, LLC, 2018 WL 4217065,
at *5 (M.D. Fla. Sept. 5, 2018) (Moody, J.) (collecting cases).
Noting a split of authority about whether ACA International vacates the 2003
and 2008 declaratory rulings on which the 2015 declaratory ruling relies, the R&R
determines that the pre-2015 declaratory rulings remain valid and that the 2003 and
2008 declaratory rulings, which define an ATDS to include a predictive dialer,
“should govern here.” (Doc. 85 at 12)
Ocwen objects that ACA International necessarily vacates the 2003 and 2008
declaratory rulings’ interpretation of the type of system that constitutes an ATDS.
Although ACA International resolves a challenge to the 2015 declaratory ruling, ACA
International rejects the argument that, because no litigant timely challenged the 2003
and 2008 declaratory rulings, a review of the 2015 declaratory ruling is unavailable.
Instead, ACA International holds that the 2015 declaratory ruling’s affirmance of the
earlier rulings “does not shield the agency’s pertinent pronouncements from review”
because the FCC’s “prior rulings left significant uncertainty about the precise
functions an autodialer must have the capacity to perform.” ACA International, 885
F.3d at 700. In other words, ACA International rejects not an isolated challenge to the
2015 declaratory ruling but the inconsistent reasoning contained in the 2003 and
2008 declaratory rulings and affirmed in the 2015 declaratory ruling. Assailed by
- 5 -
ACA International as contradictory, arbitrary, and exhibiting “two minds,” the 2003
and 2008 declaratory rulings merit no deference. The weight of authority agrees.2
ii. Whether the TCPA prohibits the use of a predictive dialer
Because the R&R determined that the 2003 and 2008 declaratory rulings
control, the R&R did not address whether a predictive dialer constitutes an ATDS
under the TCPA. Section 227(a)(1) defines an ATDS 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.
DeNova argues that the proximity of the qualifying phrase “using a random or
sequential number generator” to “produce” means that the qualifying phrase
modifies only “produce” and not “store.” Under DeNova’s interpretation, to
constitute an ATDS the system must either (1) store numbers for calling or
(2) produce numbers for calling using a random number generator. DeNova argues
that, although lacking the capacity to generate random numbers, a predictive dialer
possesses the capacity to “store numbers to be called” and constitutes an ATDS.
2 Gonzalez v. Ocwen Loan Servicing, LLC, 2018 WL 4217065, at *6 (M.D. Fla. Sept. 5, 2018)
(Moody, J.); Melvin v. Ocwen Loan Servicing, LLC, 2019 WL 1980605, at *3 (M.D. Fla. May 3, 2019)
(Honeywell, J.); Adams v. Ocwen Loan Servicing, LLC, 366 F. Supp. 3d 1350, 1354 (S.D. Fla. 2018)
(Oct. 26, 2018) Thompson-Harbach v. USAA Federal Savings Bank, 359 F. Supp. 3d 606, 623 (N.D.
Iowa 2019); Sessions v. Barclays Bank Del., 317 F. Supp. 3d 1208, 1212 (N.D. Ga. 2018) (May, J.);
Keyes v. Ocwen Loan Servicing, LLC, 335 F. Supp. 3d 951, 960 (E.D. Mich. 2018); Herrick v.
GoDaddy.com LLC, 312 F. Supp. 3d 792, 799 (D. Ariz. 2018); Marshall v. CBE Grp., Inc., 2018 WL
1567852, at *5 (D. Nev. Mar. 30, 2018).
However, the “punctuation canon” advises that if a qualifying phrase follows
a comma and the comma follows a list, the qualifying phrase qualifies each item in
the list — not the last item only. Bingham, Ltd. v. United States, 724 F.2d 921, 925–26,
n.3 (11th Cir. 1984) (Clark, J.) (“Where the modifier is set off from two or more
antecedents by a comma, . . . the comma indicates the drafter’s intent that the
modifier relate to more than the last antecedent.”); Antonin Scalia & Bryan Garner,
Reading Law: The Interpretation of Legal Texts 161–166 (Thomson West 2012). Because
the statutory definition of an ATDS contains a list — “to store or produce” — that
precedes a comma and because the qualifying phrase — “using a random or
sequential number generator” — follows the comma, the phrase qualifies both
“store” and “produce.”
Although Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018), finds
intolerable ambiguity in the definition of an ATDS and embarks on an ambiguous
quest to discover the (always malleable) congressional intent, the natural and
grammatical reading of the TCPA’s definition of an ATDS — the focus of which is
the capacity to generate random or sequential numbers — compels the conclusion
that to constitute an ATDS the system must possess the capacity (1) to store
telephone numbers using a random or sequential number generator or (2) to produce
telephone numbers using a random or sequential number generator. Gonzalez v.
Ocwen Loan Servicing, 2018 WL 4217065, at *6 (M.D. Fla. Sept. 5, 2018) (Moody, J.);
Brown v. Ocwen Loan Servicing LLC, 2019 WL 4221718, at *5 (M.D. Fla. Sept. 5, 2019)
(Barber, J.); Thompson-Harbach v. USAA Federal Savings Bank, 359 F. Supp. 3d 606,
625 (N.D. Iowa 2019); Adams v. Safe Home Security Inc., 2019 WL 3428776, at *3–4
(N.D. Tex. July 30, 2019); Keyes v. Ocwen Loan Servicing LLC, 335 F. Supp. 3d 951,
963 (E.D. Mich. 2018).
Resisting this interpretation, DeNova argues that a system cannot “store”
numbers using a random or sequential number generator. But the inclusion of
“store” ensures “that a system that generated random numbers and did not dial [the
numbers] immediately[] but instead stored [the numbers] for later automatic dialing”
constitutes an ATDS. Johnson v. Yahoo!, Inc., 346 F. Supp. 3d 1159, 1162 n.4 (N.D.
Ill. 2018). And the occasional redundancy with “store” and “produce” cannot
overcome the natural and grammatical reading of the statute.
Also, DeNova argues that reading “using a random or sequential number
generator” to qualify both “store” and “produce” nullifies the affirmative defense of
consent. Under Section 227(b)(1)(A), a caller may avoid liability under the TCPA if
the caller receives consent before calling. DeNova contends that if an ATDS must
possess the capacity to generate and call random or sequential numbers, the caller
cannot receive consent before calling because the ATDS calls numbers at random.
However, the affirmative defense retains force because liability attaches under the
TCPA if a person uses a pre-recorded or artificial voice to call a number neither
randomly nor sequentially generated. Also, because a system constitutes an ATDS if
the system possesses the “capacity” to generate random or sequential numbers,
liability attaches to a caller using an ATDS even if the caller does not use the
ATDS’s capacity to generate random or sequential numbers.
To constitute an ATDS the system must possess the capacity to generate
random or sequential numbers. Ocwen’s objection to the report’s resolution of the
TCPA claim is SUSTAINED.
Remaining Objections
Ocwen objects that no genuine factual dispute exists about whether Ocwen’s
collection efforts constitute harassment under the FDCPA and FCCPA, and
DeNova objects that no genuine factual dispute exists about whether DeNova
revoked consent to receive debt collection calls and whether Ocwen knew DeNova
had retained an attorney. An independent review of the record confirms the
existence of a genuine factual dispute about whether Ocwen called DeNova with a
harassing frequency, whether DeNova revoked consent, and whether Ocwen knew
that DeNova had retained an attorney. The remaining objections are
OVERRULED.
CONCLUSION
The report and recommendation (Doc. 85) is ADOPTED-IN-PART.
DeNova’s motion for summary judgment (Doc. 42) is DENIED. Ocwen’s motion
for summary judgment (Doc. 43) is GRANTED-IN-PART as follows.
1. Summary judgment is GRANTED against DeNova’s FCCPA claims
(Counts I, II, and III) as to the 815 calls placed before February 1, 2015.
Summary judgment is DENIED for the 830 calls placed on or after
February 1, 2015.
2. Summary judgment is GRANTED against Denova’s FDCPA claims
(Counts IV, V, and IV) as to the 1,374 calls placed before February 1, 2016.
Summary judgment is DENIED as to the 271 calls placed on or after
February 1, 2016.
3. Summary judgment is GRANTED against DeNova’s claim under the
TCPA that Ocwen used an ATDS. (Count VII). Summary judgment is
DENIED as to DeNova’s claim under the TCPA (Count VII) that Ocwen
used a pre-recorded voice to call DeNova without consent.
This action is REFERRED to mediation. No later than DECEMBER 20,
2019, the parties must mediate before Jack Townsend. No later than OCTOBER 4,
2019, the parties must file a notice of mediation.
ORDERED in Tampa, Florida, on September 24, 2019.
Alindrnyaraging
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE
-10-