TELEPHONE CONSUMER PROTECTION ACT-ATDS EQUIPMENT USED

Panzarella v. Navient Sols., Inc., 2022 U.S. App. LEXIS 16324 (3^rd Cir. June 14, 2022) (Rendell, C.J.)  Elizabeth and Joshua Panzarella (“the Panzarellas”) sued Navient Solutions, LLC (“Navient”), claiming that, among other things, Navient violated the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 (the “TCPA”). The Panzarellas assert that Navient called their cellphones without their prior express consent using an automatic telephone dialing system (“ATDS”) in violation of section 227(b)(1)(A)(iii) of the TCPA. The District Court granted summary judgment for Navient. It concluded that Navient’s dialing technology did not qualify as an ATDS under section 227(a)(1) of the TCPA because it viewed a particular component of Navient’s dialing technology as separate from its dialing system. As a result, it erred by failing to consider whether Navient’s dialing “equipment” as a whole qualified as an ATDS. Id. Even though we do not decide whether Navient’s dialing equipment qualified as an ATDS, we find that Navient did not use an ATDS in violation of the TCPA when it called the Panzarellas. Thus, we will affirm the District Court’s order on this alternative ground. While the District Court erred in granting summary judgment based on whether the ININ System qualified as an ATDS, summary judgment may still have been properly granted if we find the record makes clear that, when Navient called the Panzarellas, it did not “make [these calls] . . . using any [ATDS].” § 227(b)(1)(A) (emphasis added). That is so because a violation of section 227(b)(1)(A)(iii) requires proof that the calls at issue be made “using” an ATDS. This issue turns not on whether Navient’s dialing equipment was an ATDS but on whether Navient violated the TCPA when it employed this dialing equipment to call the Panzarellas. As the record contains no evidence that Navient used the ININ System to randomly or sequentially produce or store the Panzarellas’ cellphone numbers and therefore no evidence that Navient made a telephone call using an ATDS in violation of the TCPA, Navient is entitled to summary judgment on the Panzarellas’ TCPA claims.  Even if Navient’s ININ System qualified as an ATDS under the TCPA, there is no genuine issue of material fact as to whether Navient called the Panzarellas’ cellphones without their consent “using an[] [ATDS]” in violation of section 227(b)(1)(A)(iii) of the TCPA. We will therefore affirm the District Court’s grant of summary judgment on these alternate grounds.