United States District Court, E.D. Arkansas, Jonesboro Division
OPINION AND ORDER
LEON HOLMES, UNITED STATES DISTRICT JUDGE
Goad commenced this lawsuit against Censeo Health, LLC,
claiming that Censeo Health violated the Telephone Consumer
Protection Act, 47 U.S.C. § 227 (“TCPA”),
and the Arkansas Deceptive Trade Practices Act, Ark. Code
Ann. § 4-88-101, et seq. (“ADTPA”),
when it called his cell phone repeatedly. Censeo Health has
moved for summary judgment.
insurance companies hire Censeo Health to offer annual health
assessments to their members and, if a member accepts the
offer, to schedule and perform visits. Document #14-1 at 1
¶ 4. The health insurance companies provide Censeo
Health with telephone numbers of members and Censeo Health
calls them to offer and schedule health assessment visits.
Id. at ¶ 5.
says that Censeo Health called his cellular telephone number
on numerous occasions in 2014 and 2015 trying to reach an
individual named Bradley Owens. Document #21-1. Goad’s
number was erroneously listed as the number of Bradley Owens.
Document #14-1 at 1, ¶ 6. Although Censeo Health
periodically receives updated lists of health insurance
members, Goad’s number could have been listed on an
updated list as Bradley Owens’ number. Id. at
2, ¶ 7. This would cause Goad to be called again after
he told Censeo Health’s representatives to remove his
number. Id. Censeo Health placed seventeen calls to
Goad between May 14, 2014, and April 23, 2015, some of which
resulted in neither Goad answering the telephone nor a
voicemail message being left. Document #14-2 at 6 and
Censeo Health employees place calls to health insurance
members, the employees dial each call manually. Document
#14-1 at 2, ¶ 9. Censeo Health’s employees are
prompted to dial certain telephone numbers by a computer
program that displays the number associated with a health
insurance member. Id. at ¶ 10. The computer
program has no dialing mechanism and is not connected to the
telephone system used to place the calls. Id. Upon
completion of a call, the employee enters the outcome of the
call into the computer program before the program displays
another number. Id. at ¶ 11. Censeo Health does
not use artificial or prerecorded voices during calls or
messages placed to health insurance members to offer and
schedule health assessments. Id. at ¶ 12.
should grant summary judgment if the evidence demonstrates
that there is no genuine dispute as to any material fact and
the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56. The moving party bears the initial burden of
demonstrating the absence of a genuine dispute for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If the moving party
meets that burden, the nonmoving party must come forward with
specific facts that establish a genuine dispute of material
fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89
L.Ed.2d 538 (1986); Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). A genuine
dispute of material fact is presented only if the evidence is
sufficient to allow a reasonable jury to return a verdict in
favor of the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). The court must view the evidence in the
light most favorable to the nonmoving party and must give
that party the benefit of all reasonable inferences that can
be drawn from the record. Spencer v. Jackson Cnty.
Mo., 738 F.3d 907, 911 (8th Cir. 2013). If the nonmoving
party fails to present evidence sufficient to establish an
essential element of a claim on which that party bears the
burden of proof, then the moving party is entitled to
judgment as a matter of law. Pedersen v. Bio-Med.
Applications of Minn., 775 F.3d 1049, 1053 (8th Cir.
Health argues that it is entitled to summary judgment on the
TCPA claim because it did not use an automatic telephone
dialing system or artificial or prerecorded voices. Document
#15 at 5. Goad concedes that Censeo Health does not use
artificial or prerecorded voices. Document #21 at 2, ¶
8. Goad, however, argues that Censeo Health’s phone
system has the capacity to become an automatic telephone
dialing system and, therefore, falls within the TCPA’s
Forty-seven U.S.C. § 227(b)(1)(A)(iii) provides that:
It shall be unlawful for any person within the United States
. . . to make any call (other than a call made for emergency
purposes or made with prior express consent of the called
party) using any automatic telephone dialing system or an
artificial or prerecorded voice . . . to any telephone number
assigned to a . . . cellular telephone service.
term ‘automatic telephone dialing system’ means
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 Commission has emphasized
that this definition covers any equipment that has the
specified capacity to generate numbers and dial them
without human intervention regardless of whether the numbers
are randomly or sequentially generated or come from calling
lists.” Rules & Regulations Implementing the
Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 15391,
15392, n.5 (2012) (emphasis in original). “[T]he basic
functions of an autodialer are to dial numbers without human
intervention and to dial thousands of numbers in a short
period of time.” Rules & Regulations
Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC
Rcd. 7961, 7975, ¶ 17 (2015) (internal quotations
omitted). To be an autodialer, a system does not need the
present ability to dial random and sequential numbers without
human intervention. Id. at 7974 ¶ 15. If by
adding software a system can dial random and sequential
numbers without human intervention, then it has the capacity
to be an autodialer and falls under the TCPA. Id. at
¶ 16. However, “there must be more than a
theoretical potential that the equipment could be modified to
satisfy the ‘autodialer’ definition.”
Id. at 7975, ¶ 18. Uncontroverted testimony
that a system is very clearly not an automatic telephone
dialing system warrants summary judgment. Smith v.
Securus Techs., Inc., 120 F.Supp.3d 976, 984 (D. Minn.
2015). Censeo Health has provided such testimony. Goad has
not rebutted it.
Health provided an affidavit from Archie Block, the Director
of IT, Security, and Technology Operations for Censeo Health.
Document #14-1. In that affidavit, Block testified that
Censeo Health’s employees manually dial each call by
pressing a button for each digit in the telephone number.
Id. at 2, ¶ 9. He also testified that the
computer system prompts the employees to dial certain numbers
which are displayed to the employee. Id. at ¶
10. He further testified that the computer system has no