be one needs three of the two c d s which in the procedural monster we find ourselves requires the four liability on any particular telephone call that the defendant for your position that there's no evidence to show that this cisco or the new system is such a device and that sort of in that part of the stature it is our position that there is no which requires among other things using a random or sequential number generator what rather what evidence is in the record only the affidavit of joe in montana this is a business operation manager this is the site the record cited is fourteen one one three one i thought what car weren't these collection calls yes wrong so these were vied definition i mean you don't dish doesn't randomly call people trying to collect bills from from  court but he didn't find you liable on the sole use of b a t d s on no phone number eight zero zero four seven is that correct that is correct so that's really not a for us that's not an alternate ground the phrase with the intent of into the statute just prior to the term using or it would have to do is a district court did and import concepts into the statute such as a crew court boyce was present on the calls  the things about the way the statute is written in the alternative one is to use a certain kind of calling system the other is to use a prerecorded voice or be recorded voice isn't placing the call the automated telephone w decent and for system is placing the call at that's just as can be used if you look at the language of the statute as you have already read it to is improper to make any call using an artificial prerecorded her voice it just it sort of throws me that's not making a call and trying to read the voices and making the call and trying to read what that means it does seem to me one way to read the statute which is the plain fact is that it is  whatever and read that more broadly particularly with the word that you're prohibiting the making of such calls government get going to give that sound meaning making a call with a pre recorded voice one that that happens the instant the calls made but to tell if they prerecorded voice is used you have to wait and see what happens during the call so imagine this hypothetical this is a liability for a tree falling in the forest and nobody hearing it plaintiff's number was on it and i had a a dial a push button telephone and i dialed the number and but i didn't want to you know there's a whole list of a lot of people so i didn't want to have to say each suspicious very similar facts in fact overlapping telephone time for telephone customer situation very much like this with a precious few calls like this one not the garage or telephone spam and the court so there's precedent there's there's certainly statue of destruction there's just not any way that the that it can this is not a matter of the instant that a call is made a violation for others have to wait and see what happens in the the statute is that the calls are made at the liabilities based on the call being made not on the use they're placing the you emphasis on the use but really where the emphasis should be is that the call is when the call is made and statute and saying you're just making the recall was no your honor we're not popping off for saying that when the prerecorded voice isn't used on the call it's when the call is made in this case i'm different from some of the other cases that were cited by the oppon come important different things when you're trying to manage dialing on the one hand and prerecorded voice on the other i don't think that the statute discriminates between those two uses it's an either seen touched on this in the southern district new york in a recent case where he said that it's an it's an alternative theory so it's using one or the other and if the case law applies to one then it applies to the other well but that's obviously not true in terms of what using is kind of you because you did add the word intend to your description of what would happen in a case like that where the person doesn't even answer the phone but if that person answered the phone the message would play so that the end the call is being made by the thing you're asking so you're saying that people can file suit because they get calls on their cell phones that identify and let's say an eight hundred or an eight seven seven number with which they are unfamiliar which they do not bother to answer and which they only identify by using the call when it's at the call received and dialing back right i mean how if if nobody ever if he had never entered the phone with there been a filing ssion but that's not what happened here he had a mask on you but that's the logical implication of what you're saying it's one thing if you're getting robo calls from the same number periodically and you refuse to answer them because you know that you don't know these people or don't deal with them but if it's a voicemail and you never hear it for the same rate require is that a double violation is that a double violation automatic dialing and and court a voice i suppose it is a double violation but you would only be liable once under the statute but the answer to that is that these statute designed to protect people from he is harassing cause and requiring the called party to answer every call in order to establish liability in a case such as this one where additions admitted that the pre recorded voice was used on the halls w wrong contrary to the legislative history of the statute i mean you sought twenty five thousand dollars in your complaint here at the time the complaint was filed i don't know that we knew the exact number of  calls that why because he didn't know the numbers the numbers he was just because a woman didn't pay a lot of bills so you had to whoever the previous owner was to pay a lot of bills so a lot of those calls were coming home i don't know that that was true i just don't know that we had a specific to respond to the motion to dismiss argument i just wanted to point out that while the judge did enter his own final final judgment dish did agree to a judgment where they did not reserve any right of appeal and since i'm standing here today i'm not sure that matters but that is that was our opinion on the motion to dismiss some whether or not the shapiro should be heard what's the best case and do you have any cases of fixing liability on pre recorded voice under your theory but that if the voice mail does not activate their liability way i mean i believe your only cases were on the  v s right the cases we cited in the court below were on the a t v s there's a recent decision out of the southern district new york judge judge hellerstein in knocking recess time warner where he discusses this issue and says that it's an alternate theory of liability and that if they're using the prerecorded voice on the calls those calls violate  the message or not in a case such as this one where they have admitted that the voice would play if the person answered it creates liability under the two c p a given that it is a statute to it designed to keep people from being harassed by these types of calls that if they had to answer every one in order to be to bring a suit it's sort of defeats the purpose of of what the statute is trying to do which is stop people from being harassed or you're using you didn't even know the extent of the illicit calls until you saw sauteed in discovery well we knew that there were calls on our we had i believe screenshots from from history of our shelling the calls and he had said that he had answered calls and he heard the prerecorded buses so we knew that there was liability if not the exact number of calls you you read the word intend before the word use in regard to the prerecorded message wouldn't it be also consistent with that to read the word intended before the word or two to place the call for example what if the dialing mechanism never worked it only doll three or four numerals but not the rest so that the calls were never almost strong enough to reach it and she'd be going well beyond the language i'm not saying you'd agree with but i just said but but what what we're looking at the statutory language and what to make of it of the  he had said that he was not going to consider the the manual but he did not exclude them at all he said that if we went to trial of lee we believe plaintiff's burden to show that that was admissible piece of evidence which it is  given that it was produced by the ash are going to be an automatic and illegal automatic dialing service when the only people they are calling are people who haven't paid their bill now it's another thing if the so phone number is moved on to another person which dish can't know but how can that possibly be an automatic a t d s within the statute the f c c just walled on july tenth that this w reiterated that this statute or applies that to duck auction are payment reminder calls and that it's even if the company is trying to reach a person that they think they're trying to reach and are actually reaching somebody else that that's still a violation that's ridiculous just just briefly i just want to live sum up by saying that i think that the judge's opinion was judge opener's opinion was well reasoned and he relied on what would wait a minute but what factors she would better be on the prerecorded voice issue whether or not that they were there whether or not they were actually played whether they were what whether that whether dish intended for them to be pla just declined to to rely on it on summary judgment and he sort of punted that issue for trial i'm so we would we would want to to go to trial to to give the plaintiff an opportunity to recover on those four calls did not rule one way or the other on the summary judgment issue asked a t d s is that right that's correct all right so if you have then we disagree with you on the other issue and it remained in the district court with them still be in the summary judgment posture would it not it would have to grant or deny the motion across motion for summary judgment as to whether there's a disputed about the manual properly before us or not we did appeal that issue out of because we don't believe that the judge actually made a decision on that he sort of s i'm still just trying to decide i'm just asking you for whatever help you can give us on if it's remainder does he go to trial or does he go back to still in the shower or judgment part you for the court to determine disputed issues of material for your i believe that the are five hundred to six hundred dollars per call on here we saw five hundred for fifteen calls yes you're on fifteen plus seventy five hundred so how did you ask for twenty five thousand in damages gets through not necessarily cancer but that gets through so call that doesn't get for wouldn't appear on one of those all right so even though that's a violation according to what you told judge smith and it's not a remediable violation i'm sorry i don't understand you said it would be a violation if they call the a t g as failed part way through a call or there was a busy signal i think just because they intended to use the a t v s and therefore there's a it's a violation but it has no remedy because you can't prove that it happened or you can prove it your honor on and it's the kind of thing that could have been proven here are based a combination i think of the phone records and also dishes records that's where that number came from ok thank you thank you considered outside of following rules let me ask you about the exchange church mithras having with your opponent in light of this footnote in georgia o'connor's opinion saying using of a recorded voice that the remainder still opens and needs to be remanded you are the i'm going to answer this in a little bit of a circular way so i apologize out of the other question how can anybody keep a case like this on live and you know if judge o'connor didn't rule on part of it why don't you ask him to rule on the other part or dispose of the case we know these are these are important these are important  concede that an automatic if when they're making collection calls or reminder bill reminder calls to people who have consented to give their phone numbers up for that purpose so those are  rather than going to trial to resolve factual disputes the district court would still be in the summary judgment of needing to rule on summary judgment the important point are you saying i'm not trying to put words in your mouth i'm still trying to understand and comprehend it are you saying that only man what the district court should do is enter summary judgment summary judgment in your favor or should conduct a trial should