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Allan v. Pennsylvania Higher Education Assistance Agency

United States District Court, W.D. Michigan, Northern Division

August 19, 2019

SUSAN ALLAN and JESSICA WILSON, Plaintiffs,
v.
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY d/b/a AMERICAN EDUCATION SERVICES, Defendants.

          OPINION REGARDING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE

         Plaintiffs, Susan Allan and Jessica Wilson, sued Defendant, Pennsylvania Higher Education Assistance Agency (PHEAA), alleging that PHEAA violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227 et seq., by calling Plaintiffs' cell phones 353 times using an automatic telephone dialing system (ATDS) or an artificial or prerecorded voice without their consent. Plaintiffs moved for summary judgment, requesting that the Court award at least the statutory minimum of $500 for each violation, for a total of $176, 500, but asking the Court to exercise its discretion to award treble damages for each violation for a total of $529, 500. (ECF No. 28.) PHEAA responded, arguing (1) that the system used to dial Plaintiffs' cell phones does not fit the statutory definition of an ATDS; (2) that Plaintiffs waived the right to recover any damages for “pre-recorded calls” because the allegation appears for the first time in Plaintiffs' motion for summary judgment; and (3) that even if the Court finds that PHEAA violated the TCPA, treble damages are not appropriate. (ECF No. 37.)

         I. Background

         PHEAA is the servicer for Wilson's student loans, and Allan was the co-signer for Wilson's student loans as well as the student loans of a third person. PHEAA claims, and Plaintiffs do not appear to dispute, that Plaintiffs gave their consent for PHEAA to call their cell phones using an ATDS or an artificial or prerecorded voice when Plaintiffs submitted a written request for forbearance on the loans. However, on October 4, 2013, Allan spoke with a representative of PHEAA and requested that PHEAA stop calling her on her cell phone. (Pls.' Ex. C, Def.'s Resp. to Req. for Admis., ECF No. 30 at PageID.231.) Then, on October 15, 2013, Wilson spoke with a representative of PHEAA and likewise requested that PHEAA stop calling her on her cell phone. (Id.)

         PHEAA called Allan's cell phone regarding student loans 219 times after October 4, 2013, and Wilson's cell phone 134 times after October 15, 2013. (Pls.' Ex. F, ECF Nos. 31-32.) PHEAA used a system called the Avaya Proactive Contact system to place each of the calls. Christopher Krobath, PHEAA's Senior Manager of Workflow and Operational Support, explained how the Avaya system operates:

PHEAA's system uses a calling list that is created daily by an automated batch process that determines what subset of accountholders qualifies for telephonic contact that day, based on, among other things, amounts owed, delinquency status and prior contacts. The calling list is not randomly generated. Each morning a new and unique calling list is downloaded to the Avaya equipment used in connection with making the calls to the accountholders who will be called based on the selection criteria outlined above. A human intervenes at that point to create calling campaigns for the day. Jobs are started by the person setting up the daily workflow. The dialing system places the calls and connects them to operators when a voice is detected.

(Def.'s Ex. 2, Krobath Decl., ECF No. 37-2 at PageID.333.)

         II. Motion Standard

         Summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). While the Court must view the evidence in the light most favorable to the non-moving party, the party opposing the summary judgment motion “must do more than simply show that there is some metaphysical doubt as to the material facts.” Id. The existence of a mere “scintilla of evidence” in support of the non-moving party's position is insufficient. Daniels v. Woodside, 396 F.3d 730, 734-35 (6th Cir. 2005). The non-moving party “may not rest upon [his] mere allegations, ” but must instead present “significant probative evidence” establishing that “there is a genuine issue for trial.” Pack v. Damon Corp., 434 F.3d 810, 813-14 (6th Cir. 2006).

         While a moving party without the burden of proof need show only that the opponent cannot sustain his burden at trial, a moving party with the burden of proof faces a “substantially higher hurdle.” Arnett v. Myers, 281 F.3d 552, 561 (6th Cir. 2002). Where the moving party has the burden, “his showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986). The Sixth Circuit has emphasized that the party with the burden of proof “must show the record contains evidence satisfying the burden of persuasion and that the evidence is so powerful that no reasonable jury would be free to disbelieve it.” Arnett, 281 F.3d at 561. Accordingly, summary judgment in favor of the party with the burden of persuasion “is inappropriate when the evidence is susceptible of different interpretations or inferences by the trier of fact.” Hunt v. Cromartie, 526 U.S. 541, 553 (1999).

         III. Analysis

         The Court agrees with Plaintiffs that the Avaya system that PHEAA uses qualifies as an ATDS, and that PHEAA committed several violations of the TCPA, but the Court finds the violations entitle Plaintiffs to statutory damages, not treble damages.

         In relevant part, the TCPA prohibits “mak[ing] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” to a cell phone. 47 U.S.C. § 227(b)(1)(A)(iii). The term “automatic telephone dialing system” is defined 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). The parties dispute whether PHEAA's Avaya system qualifies as an ATDS.

         Since the enactment of the TCPA in 1991, the Federal Communications Commission (FCC) has issued multiple orders interpreting the TCPA's definition of an ATDS. The D.C. Circuit Court of Appeals reviewed several challenges to the FCC's rulings and vacated the FCC's interpretations. ACA Int'l v. FCC, 885 F.3d 687 (D.C. Cir. 2018). In particular, the D.C. Circuit focused on the FCC's interpretation of the term “capacity” and found that the TCPA is not violated when a ...


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