The Western District of Pennsylvania issued a decision in Smith v. Navient Solutions, Inc. on August 4th, 2019 that offers further precedent that predictive dialers are not per se considered automatic telephone dialing systems (ATDS) under the Telephone Consumer Protection Act (TCPA). This decision is similar to last month’s decision by the Northern District of Texas court in Adams v. Safe Home Security, Inc. in that it stands in contrast to last year’s Ninth Circuit decision in Marks v. San Diego Crunch.
The case centered on Navient’s use of the ININ telephony platform to place calls about loan default to the cell phone of a student loan debtor. According to the court, the ININ platform uses “preview,” “predictive,” and “agentless” modes. With the “preview” mode, some human action is required to place the call, while the other two modes can have the ININ system place the call without an agent initiating it. Importantly, the court found that the system—in any of the three calling modes—does not have the capacity to randomly generate phone numbers to be called or generate sequential lists of phone numbers. Rather, the evidence showed that Navient used the ININ system to dial from phone numbers that “are uploaded from a database containing Navient’s customer information.”
In its decision, the court specifically drew on two decisions by other district courts last year, namely the D.C. District’s decision in ACA International Et. Al v. Federal Communications Commission and the Third Circuit’s decision in Dominguez v. Yahoo. The Western District of Pennsylvania’s decision here is important in that it explicitly states that “a device does not qualify as an ATDS under Third Circuit precedent merely because it utilizes predictive dialing,” situating the determining factor for not designating the ININ system as an ATDS on the fact that it does not have “the present capacity to randomly or sequentially generate numbers to be called.”
While the Ninth Circuit’s Marks decision last year found that a predictive dialer is an ATDS, this Smith v. Navient decision makes for two decisions in other districts in the span of a week repudiating that finding. It bears continued attention as to how these sorts of cases will play out in other districts, helping to determine the future of predictive dialing under the TCPA.