NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD J. MEIER, No. 20-55286
Plaintiff-Appellant, D.C. No.
3:18-cv-01562-GPC-BGS
v.
ALLIED INTERSTATE LLC, c/o CT MEMORANDUM*
Corporation System 818 W 7th Street, Suite
930 Los Angeles, CA 90017,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Submitted January 14, 2022**
Pasadena, California
Before: RAWLINSON and WATFORD, Circuit Judges, and RAKOFF,*** District
Judge.
Richard Meier appeals from the district court’s order granting summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
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judgment to Allied Interstate LLC (Allied) on his claims under the Telephone
Consumer Protection Act (TCPA). We affirm.
1. Meier contends that the LiveVox Platform is an Automatic Telephone
Dialing System (ATDS) under the TCPA. 47 U.S.C. § 227(a)(1). While this
appeal was pending, the Supreme Court held that an ATDS “must have the
capacity either to store a telephone number using a random or sequential generator
or to produce a telephone number using a random or sequential number generator.”
Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1167 (2021). The LiveVox platform
requires customers such as Allied to upload lists of telephone numbers. It does not
produce the numbers it dials using a random or sequential number generator.
Meier therefore must show that the platform stores telephone numbers using
a random or sequential number generator. He does not contend that the LiveVox
system stores numbers using a random number generator. Instead, he argues that
the system stores telephone numbers using a sequential number generator because
it uploads a customer’s list of numbers and produces them to be dialed in the same
order they were provided, i.e., sequentially.
Under Meier’s interpretation, virtually any system that stores a pre-produced
list of telephone numbers would qualify as an ATDS (if it could also autodial the
stored numbers, see 47 U.S.C. § 227(a)(1)(B)). But this is precisely the outcome
the Supreme Court rejected in Duguid when it overturned a decision by this court
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holding that an ATDS “need only have the capacity to store numbers to be called
and to dial such numbers automatically.” 141 S. Ct. at 1168 (internal quotation
marks omitted).
Meier relies on a footnote in the Court’s opinion that endeavored to explain
why Congress might have used both “produce” and “store” in the ATDS definition
even though the phrase “produce telephone numbers to be called, using a random
or sequential number generator” seemingly captures all of the autodialers Congress
sought to regulate. See id. at 1172 n.7. Ultimately, the Court suggested that
Congress may simply have taken a “belt and suspenders approach” to regulating
autodialers. Id. This discussion was not central to the Court’s analysis of the
equipment at issue in Duguid, and it does not require us to adopt Meier’s expansive
interpretation. The LiveVox system does not qualify as an ATDS merely because
it stores pre-produced lists of telephone numbers in the order in which they are
uploaded. Meier’s TCPA claims therefore fail.
2. Even if Duguid did not foreclose Meier’s claims, the district court
correctly concluded that the LiveVox HCI dialer is the relevant equipment and that
the HCI Dialer does not have the capacity to automatically dial telephone numbers.
Meier argues that the court must consider the entire LiveVox platform, which also
includes an Automated dialer, because the HCI and Automated dialers both rely on
the Campaign Database (to store telephone numbers) and the Automatic Call
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Distributor (to route connected calls to LiveVox agents). However, the core
functions of each dialer remain separate: The HCI dialer cannot function without a
human agent clicking on phone numbers, and the Automated dialer excludes any
human participation. The dialers operate on different server pools and use
different queuers to send out calls. Moreover, as the district court noted,
interpreting “equipment” to include distinct programs because they share a
database or other component would drastically expand the sweep of the TCPA.
Meier also argues that the HCI dialer itself has the capacity to make
automated calls because of the ease with which a LiveVox user can switch from
the HCI dialer to the Automated dialer. But the user cannot simply flip a switch;
he or she must stop the HCI campaign and initiate a new one in order to begin
autodialing—a process that involves no fewer than five steps. And although Allied
had access to both the HCI and the Automated dialers, there is no dispute that each
of the calls to Meier’s cell phone was made using the HCI dialer. The fact that
LiveVox offers multiple dialers to its customers does not bring every call that
LiveVox makes within the scope of the TCPA. The district court thus correctly
concluded that the HCI dialer does not qualify as an ATDS.
AFFIRMED.