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Thompson-Harbach v. USAA Federal Savings Bank

United States District Court, N.D. Iowa, Eastern Division

January 9, 2019

JOAN THOMPSON-HARBACH, Plaintiff,
v.
USAA FEDERAL SAVINGS BANK, [1] Defendant.

          ORDER

          C.J. WILLIAMS UNITED STATES DISTRICT JUDGE.

         TABLE OF CONTENTS

         I. PROCEDURAL HISTORY .................................................................... 2

         II. FACTUAL HISTORY .......................................................................... 3

         A. The Credit Card Agreement ................................................................ 3

         B. Defendant's Telephone Calling Equipment .............................................. 4

         C. Defendant's Telephone Calls to Plaintiff ................................................. 5

         D. Defendant's Internal Policy ................................................................. 6

         III. STANDARD FOR SUMMARY JUDGMENT ............................................ 7

         IV. DISCUSSION ................................................................................. 10

         A. The TCPA ................................................................................ 10

         B. Whether Defendant Called Plaintiff's Cellular Telephone ........................ 14

         C. Whether Defendant Used an ATDS Device to Call Plaintiff ..................... 15

         1. FCC Rulings and ACA International .............................................. 15

         2. Whether the Predictive Dialer in this Case Was an ATDS ..................... 23

         D. Whether Defendant Called Plaintiff Without Plaintiff's Prior Consent ......... 30

         1. Oral Withdraw of Consent ......................................................... 30

         2. Legally Sufficient Oral Withdrawal of Consent ................................. 31

         a. Limitations on Means of Withdrawing Consent ............................ 32

         b. Restrictions on Means of Withdrawing Consent ............................ 34

         c. Defendant's Internal Policy .................................................... 39

         V. CONCLUSION ............................................................................... 40

         This matter is before the Court on plaintiff's Motion for Summary Judgment (Doc. 49), defendant's Motion for Summary Judgment (Doc. 50), defendant's Motion to Strike Plaintiff's Summary Judgment Evidence (Doc. 52), and defendant's Motion to Exclude Plaintiff's Expert Report and Testimony. (Doc. 53). For the reasons that follow, the Court denies plaintiff's Motion for Summary Judgment (Doc. 49), grants defendant's Motion for Summary Judgment (Doc. 50), and denies as moot defendant's motions to Strike Plaintiff's Summary Judgment Evidence (Doc. 52) and to Exclude Expert Report and Testimony. (Doc. 53).

         I. PROCEDURAL HISTORY

         On November 19, 2015, plaintiff filed a one-count complaint against defendant alleging a violation of the Telephone Consumer Protection Act (TCPA), Title 47 United States Code, Section 227, claiming defendant placed “at least seventy-one (71) collection calls to Plaintiff” after plaintiff had requested defendant cease placing such calls. (Doc. 2, at 2-3). Defendant filed an answer on January 28, 2016 (Doc. 11), and subsequently filed a motion to stay proceedings pending the outcome of cases before the United States Supreme Court and the District of Columbia Circuit Court of Appeals. (Doc. 12). On March 23, 2016, the Court granted the motion to stay. (Doc. 13). Approximately two years later, on March 26, 2018, the parties notified the Court that the D.C. Circuit Court of Appeals had issued its opinion, and the parties jointly requested that the Court lift the stay. (Doc. 28). On March 29, 2018, the Court entered an Order lifting the stay. (Doc. 29). After the stay was lifted, the Court entered a Scheduling Order and a Trial Management Order, which set certain deadlines, including an October 26, 2018 deadline for filing dispositive motions. (Docs. 35, 36).

         On October 26, 2018, the parties filed cross motions for summary judgment. (Docs. 49, 50). Defendant also filed a motion to strike the Interactive Intelligence Interaction Dialer Administration Guide exhibit contained in plaintiff's brief (Doc. 52), and a motion to exclude plaintiff's expert's testimony and report pursuant to Federal Rules of Evidence 702 and 703. (Doc. 53). The parties filed their final reply briefs on December 7, 2018, and the Court considers the motions now fully submitted. Neither party requested a hearing on the pending motions and the Court finds a hearing unnecessary.

         II. FACTUAL HISTORY[2]

         A. The Credit Card Agreement

         On December 14, 2007, plaintiff acquired an American Express credit card with defendant. On August 12, 2014, plaintiff entered into an Online Agreement with defendant regarding that credit card account.[3] The Online Agreement states:

TELEPHONE CONTACTS
We may contact you at the phone numbers in your profile.
You authorize USAA to contact you at the telephone numbers in your profile. For example, we may contact you by telephone when we detect suspicious activity on your accounts, or when we have other important information to convey to you. To revoke this authorization, you may edit your profile by removing telephone numbers on which you do not want to receive such calls.

         Plaintiff provided a telephone number with the last four digits 9507 in her online profile as her contact number (“plaintiff's telephone number”).[4] Plaintiff did not thereafter reject or withdraw from the Online Agreement, nor did plaintiff edit her profile to remove her telephone number.

         B. Defendant's Telephone Calling Equipment

         Defendant used an Aspect Unified IP, Model No. 7.3 and/or Aspect Initiated Contact Systems (“Aspect Dialer”) to make calls to its clients regarding their credit card accounts. To call a client using the Aspect Dialer, defendant had to upload the client's telephone number into the Aspect Dialer for dialing. Defendant could use the Aspect Dialer to create different “Campaigns”[5] for dialing specific telephone numbers based on different criteria.

         To dial any specific number on a Campaign, the Aspect Dialer allows a user to manually dial the telephone number, or the Aspect Dialer may be configured to automatically dial the stored telephone numbers without the need for a human being to physically dial or push a button to make the call. The Aspect Dialer can only call the specific stored telephone numbers on a Campaign, and cannot independently generate any other telephone numbers to be called. The Aspect Dialer is incapable of using a random number generator to generate random telephone numbers for dialing. Plaintiff's expert, Randall Snyder, agreed in a deposition that the Aspect Dialer is not capable of generating random telephone numbers or sequential blocks of telephone numbers for dialing. Although a collection company defendant engaged used another type of dialing system called an Interaction Dialer, defendant itself did not use that type of system. Even if defendant is liable for that company's use of an Interaction Dialer, however, plaintiff's own expert admits that like the Aspect Dialer, an Interaction Dialer is incapable of generating random or sequential number lists for dialing, and can only dial specific telephone numbers it is provided.

         C. Defendant's Telephone Calls to Plaintiff

         On August 1, 2015, defendant began using the Aspect Dialer to call plaintiff's telephone number regarding plaintiff's credit card account. Plaintiff admitted the calls were not random and that defendant was specifically trying to get in contact with plaintiff-using a telephone number plaintiff provided-regarding plaintiff's existing debt.

         During the August 1, 2015 telephone call, plaintiff informed defendant that plaintiff was working with a consumer credit counseling service, and plaintiff complained about defendant's call, but was advised that the calls would continue. Defendant called plaintiff again on August 5, 2015. During this call, plaintiff informed defendant that plaintiff had previously tried to make payment arrangements and was working with debt consultants. Plaintiff alleges that during this call, she asked defendant to stop calling her; defendant denies this allegation.

         Between August 8, 2015, and September 17, 2015, defendant used the Aspect Dialer to place thirty-four telephone calls to plaintiff using the Aspect Dialer. During a telephone call on August 13, 2015, plaintiff asked defendant not to call her, which request was noted in defendant's account notes. During a telephone call on August 25, 2015, plaintiff again stated that she was working with a credit counseling service and wondered why defendant was still calling her. Plaintiff asserts that during this call she requested that defendant stop calling her; defendant denies that plaintiff requested that defendant stop calling plaintiff during the August 25, 2015 telephone call.

         On September 18, 2015, defendant assigned collection of plaintiff's account to United Recovery Systems (a/k/a Alltran Financial) (“URS”). URS then placed fifty-three calls to plaintiff's telephone number between September 22, 2015, and January 11, 2016. Twelve of these calls were made using equipment from Interactive Intelligence Group, Inc., using an Interaction Dialer; the remaining calls “were made with manual-only dialing equipment, which is separate and distinct from the Interaction dialer, and for which a human being is required to manually initiate any and all calls made using that equipment (including all calls to the x9507 Number).” (Doc. 5, at 9).

         D. ...


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