## Facts

- Diversified Consultants, Inc. (DCI), a debt collector, attempted to collect a debt allegedly owed by Rosalee Pagan.
- DCI obtained a phone number through a skip-trace service; the number belonged to Jamie Davis’s cellular phone, not Pagan.
- DCI used an automated dialing platform, LiveVox, to place calls from calling lists and route answered calls to live collectors.
- Over less than four months, DCI called Davis’s cell phone about 60 times; Davis answered roughly five to seven times.
- Davis told DCI he did not know Pagan and asked DCI to stop calling; calls nevertheless continued.
- Davis never had an account with DCI and did not provide DCI his number or consent to call his cellular phone.
- Davis sued under the TCPA, FDCPA, and the Massachusetts Privacy Act; the parties filed cross-motions for summary judgment, and Davis moved to strike an affidavit submitted by DCI.

## Issues

1. Whether LiveVox qualified as an “automatic telephone dialing system” (ATDS) under the TCPA when it dialed from stored lists rather than random or sequential number generation.
2. Whether DCI had “prior express consent” to call Davis’s cellular number when the number was obtained by skip tracing for a different person.
3. Whether repeated calls after Davis denied being the debtor and requested cessation could violate the FDCPA and the Massachusetts Privacy Act.
4. Whether an affidavit contradicting the company’s Rule 30(b)(6) testimony should be struck or disregarded at summary judgment.

## Decision

- Davis’s motion to strike was denied, but the court declined to credit affidavit statements that directly contradicted DCI’s prior Rule 30(b)(6) deposition testimony.
- DCI’s motion for summary judgment was denied on all claims.
- Davis’s motion for partial summary judgment on the TCPA claim was granted in part and denied in part.
- The court held LiveVox constituted an ATDS under the TCPA as interpreted by the FCC at the time and found no genuine dispute that Davis did not consent to being called on his cellular phone.
- The court left issues such as the precise scope of actionable calls and damages for further proceedings.
- FDCPA and Massachusetts Privacy Act claims were not resolved as a matter of law because factual disputes remained regarding whether the frequency and persistence of calls constituted harassment or an invasion of privacy.

## Legal Principles

- Under then-governing FCC interpretations, predictive dialers that dial from stored lists may qualify as an ATDS if the equipment has the requisite capacity, even if it does not actually generate random or sequential numbers in the challenged calling sequence.
- For TCPA consent, the relevant “called party” is the current subscriber or user of the number reached; intent to call a different person does not supply consent.
- Obtaining a number through skip tracing does not establish the called party’s prior express consent to receive autodialed calls to a cellular phone.
- Continued collection calls after a recipient states they are not the debtor and requests that calls stop can support FDCPA harassment theories and state-law privacy claims, depending on the totality of the circumstances.
- On summary judgment, a party cannot create a genuine dispute by offering affidavit testimony that directly contradicts binding corporate deposition testimony.

## Conclusion

The court ruled that DCI’s LiveVox predictive dialer fell within the TCPA’s ATDS framework (as then interpreted) and that DCI lacked the called party’s consent when it repeatedly called Davis’s cellular phone on a wrong number; related FDCPA and Massachusetts privacy claims proceeded because a factfinder could view the calling pattern as harassing or privacy-invasive.


Davis v. Diversified Consultants, Inc., 36 F. Supp. 3d 217 (D. Mass. 2014)