UNITED STATES DISTRICT COURT

IN THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAKISHA T SMITH,

 Plaintiff,

v.

STELLAR RECOVERY, INC;

COMCAST CORPORATION;

COMCAST OF DETROIT, LLC,

 Defendant(s).

Case No. 2:15-cv- 11717-SJM- MKM

PLAINTIFF’S OBJECTION TO REPORT 

AND RECOMMENDATION OF 

FEBRUARY 7, 2017 [Doc # 71] AND 

BRIEF IN SUPPORT

2:15-cv-11717-SJM-MKM Doc # 72 Filed 02/22/17 Pg 1 of 19 Pg ID 1955
1

UNITED STATES DISTRICT COURT

IN THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAKISHA T SMITH,

 Plaintiff,

v.

STELLAR RECOVERY, INC;

COMCAST CORPORATION;

COMCAST OF DETROIT, LLC,

 Defendant(s).

Case No. 2:15-cv- 11717-SJM- MKM

PLAINTIFF’S OBJECTION TO REPORT 

AND RECOMMENDATION OF 

FEBRUARY 7, 2017 [Doc # 71]

Plaintiff Lakisha T. Smith (“Plaintiff”), pursuant to Fed. R. Civ. P. 72(h), moves the 

Court for an Order declining to adopt Report and Recommendation [Doc # 71] as to the 

Magistrate Judge’s finding that the LiveVox HCI system is not an Automatic Telephone Dialing 

System under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq.

WHEREFORE, Plaintiff requests that the Court grant her Motion for Partial Summary 

Judgment and enter a judgment in favor of Plaintiff as further requested in the legal brief 

submitted. [Doc 38].

Respectfully submitted,

/s/ Stephen A. Thomas

Dated: February 22, 2017 STEPHEN A. THOMAS P43260

Attorney for Plaintiff

645 Griswold St., Suite 1360

Detroit, Michigan 48226

313-965-2265

sthomas@313965bank.com

2:15-cv-11717-SJM-MKM Doc # 72 Filed 02/22/17 Pg 2 of 19 Pg ID 1956
i

TABLE OF CONTENTS

INDEX OF AUTHORITIES............................................................................................... ii

CONCISE STATEMENT OF ISSUES PRESENTED...................................................... iv

INTRODUCTION ...............................................................................................................1

STATEMENT OF FACTS ..................................................................................................3

STANDARD OF REVIEW.................................................................................................4

MAGISTRATES JURISDICTION .....................................................................................4

OBJECTION #1...................................................................................................................5

ARGUMENT.......................................................................................................................5

I. Pozo court did not have the deposition testimony of

Kevin Stark and Racheal Vallarilli ......................................................................................5

II. The Pozo court did not consider Supplemental Authority

[70] In Opposition to Defendant’s Motion for Partial Summary Judgment [DE 44]..........7

III. The LiveVox HCI system is predictive dialer which makes it an ATDS...................12

IV. The LiveVox HCI system is a system composed of

several pieces of equipment which makes it a ATDS........................................................12

CONCLUSION..................................................................................................................13

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ii

INDEX OF AUTHORITIES

CASES:

Bennett v. General Caster Sendee of N. Gordon Co., Inc.,

967 F.2d 995, 997(6th Cir. 1992) ........................................................................................5

In re Collecto, Inc., 14-MD-02513-RGS, 2016 U.S. Dist. LEXIS 16319,

2016 WL 552459, at *4 (D. Mass. Feb. 10, 2016) .............................................................2

Cespedes v Coughlin, 956 F. Supp 454, 463 (S.D.N.Y. 1997)............................................4

Espejo v Santander Consumer USA, Inc, ___F Supp 3d___;

2016 U.S. Dist. LEXIS 142259 (ND Ill, Oct. 14, 2016)......................................................3

Flournoy v Marshall, 842 F.2d 875. 878-79 (6th Cir. 1988)...............................................4

Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2753, 2014 U.S. Dist. LEXIS 

171325, 2014 WL 7005102, at *5 n.10 (N.D. Ill. Dec. 11, 2014) ......................................2

Massey v City of Ferndale, 7 F.3d 506, 510-11 (6th Cir. 1993)..........................................4

Nettles v Wainwright, 677 F.2d 404, 408 (5th Cir. 1982),

overruled in part on other grounds, 79 F.3d 1415 (5th Cir. 1996).......................................4

North Am. Watch Corp. v Princess Ermine Jewels,

786 F2d 1447 (9th Cir. 1986) ..............................................................................................4

Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc.

725 F,2d 537, 546 (9th Cir. 1984) .......................................................................................4

Pozo v Espejo v Santander Consumer USA, Inc, ___F Supp 3d___;

2016 U.S. Dist. LEXIS 142259 (ND Ill, Oct. 14, 2016)..........................................3, 5, 6, 7

United States Fidelity and Guar. Co. v Thomas Solvent Co.

955 F.2d 1085, 1088 (6th Cir. 1992.....................................................................................4

FEDERAL RULES:

Fed R. Civ. P. 72(b).............................................................................................................4

Fed R. Civ. P. 72(h).............................................................................................................3

FEDERAL STATUTES:

28 U.S.C §636 .................................................................................................................4, 5

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iii

28 U.S.C. § 1746 .................................................................................................................3

Article III of the Constitution ..............................................................................................4

FCC REPORTS AND DECISIONS:

In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 

Declaratory Ruling, 23 F.C.C. Rcd. 559, 566 ¶ 12, 2008 WL 65485 (F.C.C. Jan. 4, 2008)

("2008 Declaratory Ruling) ...............................................................................................11

OTHER AUTHORITIES:

https://www.merriam-webster.com/dictionary/system......................................................12

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iv

CONCISE STATEMENT OF ISSUES PRESENTED

1. Whether the Magistrate Judge erred in finding the HCI system was not ATDS.

Plaintiff Answers: Yes.

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1

UNITED STATES DISTRICT COURT

IN THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LAKISHA T SMITH,

 Plaintiff,

v.

STELLAR RECOVERY, INC;

COMCAST CORPORATION;

COMCAST OF DETROIT, LLC,

 Defendant(s).

Case No. 2:15-cv- 11717-SJM- MKM

BRIEF IN SUPPORT OF PLAINTIFF’S 

OBJECTION TO REPORT AND 

RECOMMENDATION OF FEBRUARY 7, 

2017 [Doc # 71]

INTRODUCTION

The LiveVox Human Call Initiator (HCI) dialing system can make calls and end calls 

without a live Stellar agent. [Frady Dep., pp. 72-73, ln. 18-18; pp. 75-76, ln. 20-3.] No live 

Stellar agent is ever on the line during any period when the calls are being placed. Id. The only 

time a call is placed with a live agent is when the media server, which uses automated voice 

detection technology, detects a human voice. [Frady Dep., pp. 73-74, ln. 19-8; Stark Dep., p. 40, 

ln. 13-21.] If the LiveVox voice detection technology detects that the call has been forwarded to 

a voicemail system or answering machine, the call is terminated without a message being left. 

[Frady Dep. p. 75, ln. 12-17; Stark Dep., pp. 43-44, ln. 21-4.] Only if the media server detects 

that a live person answered the call, the media server then determines whether a closer agent is 

available to speak with the called party. [Frady Dep., p. 80, ln. 6-19; Stark Dep., p. 42, ln. 3-6.] 

If the media server detects that a live person answered the call and no closer agent is available to 

speak with the called party, the called party is placed on hold until a closer agent becomes 

2:15-cv-11717-SJM-MKM Doc # 72 Filed 02/22/17 Pg 7 of 19 Pg ID 1961
2

available. [Frady Dep. pp. 61-62, ln. 23-21; Stark Dep., p. 46-47, ln. 10-1.] Finally, in order for 

the HCI dialing system to place a call, the Campaign Database, the Automatic Call Distributor 

(ACD), and the Media Server all need to be functional and “up and running.” [Stark Dep., p. 34, 

ln. 11-16.]

In Espejo v Santander Consumer USA, Inc, ___F Supp 3d___; 2016 U.S. Dist. LEXIS 

142259 (ND Ill, Oct. 14, 2016), the main issue was whether the "Aspect Telephone System" 

utilized by Santander Consumer USA, Inc. to call Plaintiff is an automatic telephone dialing 

system (“ATDS”) under the TCPA. The Espejo Court denied Defendant’s Motion for Summary 

Judgment on the ATDS issue, concluding that “As for the ‘human intervention’ required by 

Santander's Aspect system, its own description of that system reveals that there is little to speak 

of . According to Santander, its ‘dialer operations team’ ‘uploads’ a ‘file’ containing a ‘criteriagenerated list’ of telephone numbers derived from factors ‘such as account behavior scores, 

account balances, new loan status, days past due and amounts past due.’ Dkt. 96, at 5. And 

‘when agents log-in and press buttons indicating their availability,’ the Aspect system's ‘dialer’ 

‘responds to these agent-initiated [*12] signals by dialing numbers from the uploaded list, using 

an algorithm designed to efficiently match available agents to answered calls.’ Id. Thus, 

according to Santander's own description, its Aspect ‘dialer’—not the agents—makes the calls 

‘by dialing numbers from the uploaded list.’ That ‘some act of human agency occurs at some 

point in the process’ does nothing to place Santander's automated ‘dialer’ beyond the TCPA's 

reach, since a person ‘will always be a but-for cause of any machine's action.’ See In re Collecto, 

Inc., 14-MD-02513-RGS, 2016 U.S. Dist. LEXIS 16319, 2016 WL 552459, at *4 (D. Mass. Feb. 

10, 2016) (emphasis in original); Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2753, 2014 U.S. 

Dist. LEXIS 171325, 2014 WL 7005102, at *5 n.10 (N.D. Ill. Dec. 11, 2014)). ” This is the 

2:15-cv-11717-SJM-MKM Doc # 72 Filed 02/22/17 Pg 8 of 19 Pg ID 1962
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same argument Defendant Stellar Recovery, Inc. used in the Pozo v Espejo v Santander 

Consumer USA, Inc, ___F Supp 3d___; 2016 U.S. Dist. LEXIS 142259 (ND Ill, Oct. 14, 2016 

case with the DECLARATION OF LAURENCE H. SIEGEL, which reads in part:

I, LAURENCE H. SIEGEL, hereby declare under the penalty of perjury that

the foregoing is true and correct pursuant to 28 U.S.C. § 1746:

1. My name is Laurence H. Siegel. I am the Executive Vice President of

Product Development for LiveVox, Inc. ("LiveVox").

7. Every call launched using HCI requires human intervention by an agent:

an employee or other person working on behalf of the LiveVox customer making

the call. The human intervention takes the form, in part, of a "clicker agent"

clicking on a dialogue box to confirm the launching of a call to each particular

telephone number. The call will not be launched unless the clicker agent clicks on

the dialogue box.

8. The clicker agent is also able to monitor a real-time dashboard that

contains information about "closer agent" availability, number of calls in progress,

and related metrics. The closer agent is the agent designated by the LiveVox

customer to speak with the call recipient. In addition to the action required by the

clicker agent, in order for a call to be launched in HCI, there must be a closer agent

who is available to take the call. Further, HCI is designed to allow a clicker agent 

to control how often calls are made by reviewing the dashboard and making

judgments based on that information when deciding when to launch any particular

call.

9. A clicker agent, when logged into HCI, is logged into HCI only and not

into any other LiveVox outbound dialing system. To log into any other LiveVox

outbound dialing system, the clicker agent would first need to log out of HCI.

STATEMENT OF FACTS

The material facts revealed through the Kevin Stark and Racheal Vallarilli deposition 

transcripts have already been detailed to the Court through Plaintiff’s motion for partial summary 

judgment [DE 38] to which those transcripts were originally attached. The Pozo court did not 

consider either Kevin Stark or Racheal Vallarilli depositions. The Pozo court relied on the 

Declaration of Laurence H. Siegal in making its ruling. Plaintiff Smith argued to the court that 

the Declaration of Laurence H. Siegal was a sham, based in part on the sworn testimony of both 

Stark and Vallarilli. [Doc # 58]

2:15-cv-11717-SJM-MKM Doc # 72 Filed 02/22/17 Pg 9 of 19 Pg ID 1963
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The campaign database which is part of the HCI system has the capacity to store 

numbers. [Stark Dep., p. 17, ln. 3-5, p 18, ln. 12-15]. The Automatic Call Distributor (ACD), 

which is part of the HCI system, also has the capacity to store numbers. [Stark Dep., p. 21, ln. 4-

12]. The HCI system has the capacity to dial numbers. [Vallarilli Dep. p. 118, ln. 21-25]

STANDARD OF REVIEW

A district court must make a de novo determination of any portion of a magistrate judge's

recommended disposition to which a timely objection is filed. 28 U.S.C §636(b)(l); Fed, R.

Civ. P. 72(h): United States Fidelity and Guar. Co. v Thomas Solvent Co. 955 F.2d 1085,

1088 (6th Cir. 1992). This review is constitutionally and jurisdictionally mandated under Article

III of the Constitution. Massey v City of Ferndale, 7 F.3d 506, 510-11 (6TM Cir. 1993);

Flournoy v Marshall, 842 F.2d 875. 878-79 (6th Cir. 1988). De Novo determination requires 

"fresh consideration" of a magistrate judge's recommendation. Nettles v Wainwright, 677 F.2d 

404, 408 (5th Cir. 1982), overruled in part on other grounds, 79 F.3d 1415 (5TM Cir. 1996). The 

district court is free to substitute his or her own view for that of the magistrate without making 

any threshold finding. Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc. 725 F,2d 

537, 546 (9th Cir. 1984), no presumption of validity attaches to magistrate's findings

or recommendations. Cespedes v Coughlin, 956 F. Supp 454, 463 (S.D.N.Y. 1997). The 

determination may be based on the record of the proceedings before the magistrate judge or be 

made after taking additional evidence. Fed. R. Civ. P. 72(b); North Am. Watch Corp. v Princess 

Ermine Jewels, 786 F2d 1447 (9th Cir. 1986).

MAGISTRATES JURISDICTION 

On March 22, 2016 this court referred this case to Magistrate Judge Capel to "conduct

all pretrial proceedings". [Doc # 25]. The Federal Magistrates Act vests magistrate judges

2:15-cv-11717-SJM-MKM Doc # 72 Filed 02/22/17 Pg 10 of 19 Pg ID 1964
5

with limited jurisdiction to enter orders. 28 U.S.C. § 636(h)(1)(A) provides that a district court

may designate a magistrate judge to "hear and determine any pretrial matter pending before the

court" subject to eight enumerated exceptions which have been interpreted by the courts as 

nonexhaustive and extend to orders analogous to those set forth in the list. Bennett v. General

Caster Sendee of N. Gordon Co., Inc., 967 F.2d 995, 997(6TM Cir. 1992). Expressly excluded

from magistrate judge jurisdiction are orders for summary judgment and orders to dismiss. Fed 

R. Civ. P. 72(b)(1). In this court's review of the magistrate's report and recommendation, the 

Plaintiff submits that the order of February 7, 2017 recommendation to order summary judgment 

are to be reviewed de novo. [Doc # 71]

OBJECTION #11

ARGUMENT

I. Pozo court did not have the deposition testimony of Kevin Stark and Racheal 

Vallarilli.

Defendant Stellar was able to keep out the testimony of Kevin Stark and Racheal 

Vallarilli. Pozo presented no evidence to survive Summary Judgment. The Pozo court had only 

the Declaration of Laurence H. Siegal. After Pozo learned of this case and the depositions 

conducted by Plaintiff Smith, Pozo filed its Motion for Reconsideration re 63 Order on motion 

for summary judgment by Eduardo Pozo. (Pozo Doc #65). While the motion was pending, the 

case was settled. Plaintiff Smith submits to the court that due to the low calls in the Pozo case, 

Defendant Stellar settled the matter to allow the Order on motion for summary judgment to 

stand. (Pozo Doc #63 and 73). The following is the Pozo Docket History:

 

1 HCI System - Therefore, summary judgment should be awarded to Defendant Stellar Recovery on 

Plaintiff’s TCPA claims arising from all calls made on or after August 12, 2014 [which appears on page 

13 of the Report and Recommendation]

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6

2016-09-02 63 Order on motion for 

summary judgment

ORDER granting in 

part and denying in 

part 41 Motion for 

summary judgment. 

Signed by Magistrate 

Judge Anthony E. 

Porcelli on 9/2/2016. 

(CLA) (Entered: 

09/02/2016)

2016-09-15 64 NOTICE of hearing: 

Status Conference set 

for 9/29/2016 at 

10:00 AM in Tampa 

Courtroom 10 A 

before Magistrate 

Judge Anthony E. 

Porcelli; The parties 

shall appear 

telephonically at the 

hearing by calling 

toll-free number 1-

888-684-8852 on the 

day of the hearing 

and entering access 

code 8895301 

followed by security 

code 0929 upon 

request. (Entered: 

09/15/2016)

2016-09-21 65 MOTION for 

Reconsideration re 63 

Order on motion for 

summary judgment 

by Eduardo Pozo. 

(Attachments: # 1 

Exhibit Depo of 

Kevin Stark from 

Livevox, # 2 Exhibit 

Livevox 

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7

structure)(Wilcox, 

Lisa) (Entered: 

09/21/2016)

2016-10-14 73 NOTICE of 

settlement by Stellar 

Recovery Collection 

Agency, Inc. 

(Kohlmyer, Ernest) 

(Entered: 10/14/2016)

2016-10-17 74 ENDORSED 

ORDER denying as 

moot 65 Motion for 

Reconsideration in 

light of the 73 Notice 

of settlement filed by 

Stellar Recovery 

Collection Agency, 

Inc. Signed by 

Magistrate Judge 

Anthony E. Porcelli 

on 10/17/2016. (JMF) 

(Entered: 10/17/2016)

II. The Pozo court did not consider Supplemental Authority [70] In Opposition to 

Defendant’s Motion for Partial Summary Judgment [DE 44].

Taken in conjunction with one another, the Frady, Stark, and Vallarelli deposition 

transcripts establish the following with regard to the LiveVox Human Call Initiator dialing 

system that was used to call Plaintiff in this case:

1. When placing calls to telephone numbers identified in accounts, Stellar uses dialing services 

provided by LiveVox, Inc. (“LiveVox”). [Frady Dep., pp. 38-39, ln. 21-13; Vallarelli Dep. p. 

139, ln. 16-18.]

2. Before Stellar can begin using the LiveVox dialing systems, Stellar electronically sends 

LiveVox a file of telephone numbers and the account numbers associated with those telephone 

numbers. [Frady Dep. p. 38-29, ln. 21-13; pp. 87-88, ln. 19-8.]

2:15-cv-11717-SJM-MKM Doc # 72 Filed 02/22/17 Pg 13 of 19 Pg ID 1967
8

3. The telephone numbers are loaded into, and stored in, a “campaign database” located in New 

York. [Stark Dep. pp. 16-17, ln. 22-5; p. 18, ln. 12-15; p. 29, ln. 6-11.]

4. If LiveVox determines that a telephone number identified in the account is provided by a 

cellular service carrier, LiveVox uses its LiveVox Human Call Initiator (“LiveVox HCI”) 

telephone dialing system to place calls to that number. [Frady Dep., p. 24, ln. 10-19; pp. 38-39, 

ln. 21-18.]

5. The LiveVox HCI system places calls through use of an automated process that has predictive 

dialer functionality. [Stark Dep., p. 35, ln. 6-17; Vallarelli Dep. p. 145, ln. 4-9.]

6. An “automated call distributor” or “ACD,” which is also located in New York, pulls telephone 

numbers from the campaign database and presents them to a “clicker agent” based on the 

availability of “closer agents” to participate in a conversation with the party to be called. [Stark 

Dep., pp. 20-23, ln. 20-1; p. 29, ln. 6-11, p. 30-31, ln. 16-1.]

7. The clicker agents and closer agents are located at Stellar’s facility and login to LiveVox 

platforms through computers at their workstations. [Frady Dep., pp. 43-45, ln 12-18.]

8. The ACD has the capacity to store numbers for the purpose of presenting them to the clicker 

agent. [Stark Dep. pp. 20-23, ln. 20-1; p. 29, ln. 6-11.]

9. The ACD has “predictive functionality,” which makes it a “predictive dialer.” [Stark Dep., p. 

35, ln. 6-17.]

10. The ACD is the primary component in the LiveVox HCI dialing system. [Stark Dep., p. 59, 

ln. 2-3.]

11. Once the telephone numbers and account information have been provided to LiveVox, the 

ACD presents telephone numbers to the clicker agent through an icon on the computer screen. 

[Frady Dep., pp. 50-51, ln. 3-19; Stark Dep. p. 20, ln 6-16.]

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9

12. Each clicker agent sits in a cubicle with a computer screen in front of him or her. [Frady 

Dep., pp. 43, ln. 19-21.]

13. The clicker agent then begins clicking on the telephone number icons using a mouse or the 

spacebar on his or her keypad. [Frady Dep., p. 50, ln. 9-11; Stark Dep., pp. 56-57, ln. 23-1.]

14. The sole function of the clicker agent is to click on the telephone number icons, which then 

transmits the telephone number to the next automated phase of the LiveVox HCI dialing system. 

[Stark Dep., p. 28, ln. 9-11; p. 30, ln. 12-23.]

15. The clicker agent does not wear a headset or utilize any phone equipment to speak with any 

individuals who are called through use of the LiveVox HCI dialing system. [Frady Dep., p. 46, 

ln. 8-14.] 

16. The clicker agent does not speak with any recipients of calls that are placed through the 

LiveVox HCI dialing system. [Frady Dep., p. 46, ln. 8-14.]

17. The clicker agent is never on the line when any call is placed and never hears any call being 

dialed. [Frady Dep., pp. 72-73, ln. 18-8.]

18. While engaged in clicking, the clicker agent is able to view statistics on his or her computer 

screen that identify how many “closer agents” are available to speak with consumers and how 

many calls are currently on hold waiting to be connected to a “closer agent.” [Frady Dep., pp. 

50-52, ln. 15-21, pp. 70-71, ln. 18-5.]

19. The clicker agent is able to rapidly click on the telephone number icons so that a high volume 

of telephone numbers are transmitted to the media server within seconds. [Frady Dep., p. 72, ln. 

7-17; Stark Dep., p. 30, ln. 9-13.]

20. Typically, the clicker agent clicks on more telephone number icons than there are available 

agents to take calls. [Frady Dep., pp. 56-57, ln. 21-23.]

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10

21. Even when there are consumers waiting on hold to be connected to a “closer agent,” the 

clicker agents typically continue to click on telephone number icons. It is only when too many 

customers are on hold that the clicker agents will be instructed to slow down or stop their 

clicking. [Frady Dep. pp. 54-55, ln. 21-6, p. 56, ln. 13-20.]

22. After the clicker agent clicks on the icon, the telephone number is transmitted to a “media 

server,” which is “a component of the LiveVox platform that interfaces with the carriers that 

LiveVox uses.” [Stark Dep., p. 25, ln. 16-22; p. 29, ln. 17-24.]

23. The media server “is the gateway to the carriers...[W]ithout [the media server], calls can’t go 

out.” [Stark Dep., p. 61, ln. 14-17.]

24. LiveVox, not Stellar, is the subscriber to the telephone numbers that are used to place calls 

using its LiveVox HCI dialing system. [Frady Dep., p. 64, ln. 2-9.]

25. No live agent is on the call when the LiveVox places the call to the carrier that LiveVox uses 

to connect the call. [Frady Dep., pp. 72-73, ln. 18-18.]

26. Instead, the media server uses automated voice detection technology to determine whether a 

live person answers the call or whether the call is forwarded to a voicemail system or answering 

machine. [Frady Dep., pp. 73-74, ln. 19-8; Stark Dep., p. 40, ln. 13-21.]

27. While the call is being placed, the closer agent is not on the line and does not hear the call 

dialing. [Frady Dep., pp. 72-73, ln. 18-18.]

28. If the LiveVox voice detection technology detects that the call was forwarded to a voicemail 

system or answering machine, the call is terminated without a message being left. [Frady Dep. p. 

75, ln. 12-17; Stark Dep., pp. 43-44, ln. 21-4.]

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11

29. If the media server detects that a live person answered the call, the media server then 

determines whether a closer agent is available to speak with the called party. [Frady Dep., p. 80, 

ln. 6-19; Stark Dep., p. 42, ln. 3-6.]

30. If the media server detects that a live person answered the call and no closer agent is 

available to speak with the called party, the called party is placed on hold until a closer agent 

becomes available. [Frady Dep. pp. 61-62, ln. 23-21; Stark Dep., p. 46-47, ln. 10-1.]

31. For calls that the LiveVox voice detection technology identifies as having been forwarded to 

a voicemail system or answering machine, no live Stellar agent is ever on the line during any 

period when the call is being placed. It is only after the LiveVox HCI dialing system determines 

that a live person answered the call and a closer agent is available that a live Stellar agent is 

finally joined to the call. [Frady Dep., pp. 72-73, ln. 18-18; pp. 75-76, ln. 20-3.]

32. In order for the LiveVox HCI dialing system to place a call, the campaign database, the 

ACD, and the media server all need to be functional and “up and running.” [Stark Dep., p. 34, ln. 

11-16.]

III. The LiveVox HCI system is predictive dialer which makes it an ATDS.

In 2008, the FCC issued a Declaratory Ruling reaffirming that "a predictive dialer 

constitutes an automatic telephone dialing system and is subject to the TCPA's restrictions on the 

use of autodialers." In re Rules & Regulations Implementing the Telephone Consumer Protection 

Act of 1991, Declaratory Ruling, 23 F.C.C. Rcd. 559, 566 ¶ 12, 2008 WL 65485 (F.C.C. Jan. 4, 

2008) ("2008 Declaratory Ruling"). Stark testified that the ACD used in the LiveVox HCI 

System is a predictive dialer. [Stark Dep., p. 35, ln. 6-17]

IV. The LiveVox HCI system is a system composed of several pieces of equipment which 

makes it an ATDS.

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12

According to https://www.merriam-webster.com/dictionary/system the Definition of 

System is: a regularly interacting or interdependent group of items forming a unified whole. The 

LiveVox HCI system is a system comprised of the following items:

A. Campaign database;

B. Automatic Call Distributor (ACD); and 

C. Media server pool.

The campaign database and the ACD have the capacity to store phone numbers, to 

produce numbers and the Media Server Pool has the capacity to dial numbers. [Stark Dep., p.21 

ln 9; 21., p 29 ln 9 ] That is the definition of an ATDS. The LiveVox HCI system cannot

function without the Campaign database, Automatic Call Distributor (ACD) or Media server 

pool. [Stark Dep., p.33 ln 8]

CONCLUSION

Plaintiff has presented evidence that the LiveVox HCI is both a predictive dialer and an 

Automatic Telephone Dialing System (ATDS). The magistrate judge in Pozo did not have the 

deposition testimony of Kevin Stark and Racheal Vallarilli and never made a ruling on Pozo 

motion for reconsideration in that the parties settled the matter making it moot. Plaintiff requests 

a remand, reversal or a jury to decide whether the HCI system is an ATDS.

Respectfully submitted,

/s/ Stephen A. Thomas

Dated: February 22, 2017 STEPHEN A. THOMAS P43260

Attorney for Plaintiff

645 Griswold St., Suite 1360

Detroit, Michigan 48226

313-965-2265

sthomas@313965bank.com

2:15-cv-11717-SJM-MKM Doc # 72 Filed 02/22/17 Pg 18 of 19 Pg ID 1972
13

Certificate of Service

I, Stephen A. Thomas, hereby state that on February 22, 2017, I electronically filed the 

foregoing document with the Clerk of the Court using the ECF system, which will send 

notification of such filing to the attorneys of record.

/s/ Stephen A. Thomas

Dated: February 22, 2017 STEPHEN A. THOMAS P43260

2:15-cv-11717-SJM-MKM Doc # 72 Filed 02/22/17 Pg 19 of 19 Pg ID 1973