United States: "Human Intervention" In Calling System Dooms Plaintiff's TCPA Claim

Another Florida district court, another favorable ruling for companies facing TCPA lawsuits.  In Pozo v. Stellar Recovery Collection Agency, Inc., U.S. Magistrate Judge Anthony E. Porcelli granted summary judgment for defendant Stellar Recovery Collection Agency, Inc. ("Stellar") after determining that the "point and click" dialing system it used to call the plaintiff did not constitute an automatic telephone dialing system ("ATDS") under the TCPA.1  This follows a recent decision out of the Southern District of Florida—Strauss v. CBE Group, Inc.—that granted summary judgment on similar grounds.

Background.  The plaintiff claimed that he received several debt collection calls from Stellar and that the calls continued even after he told Stellar that it was calling the wrong person.  The parties disagreed over the number and content of calls but agreed that Stellar placed the calls using the web-based LiveVox Human Call Initiator (HCI) dialing system.  The sole issue on summary judgment was whether this dialing system constituted an ATDS.

No Capacity or Potential Functionality to Autodial.  Relying on evidence submitted by Stellar that described how the technology worked, the court held that the HCI system did not have the capacity to function as an autodialer because it required "human intervention to make and route each call."  Specifically, the evidence showed that:

  • Each call has to be initiated by a human "clicker agent," who has to confirm, by clicking a dialogue box on his/her computer screen, that a particular telephone number should be dialed. If the clicker agent fails to click on the dialogue box, the call will not be placed.
  • Once a call is answered, the clicker agent refers the call to a human "closer agent," who speaks with the customers. Clicker agents also monitor closer agent availability; the clicker agent cannot initiate a call if no closer is available to take it.

The plaintiff pointed to cases involving a different LiveVox dialing system that courts found actionable under the TCPA.  But the court distinguished these cases, reasoning that, unlike that LiveVox predictive dialing system, the HCI system does not use any statistical algorithms to minimize agent wait time between calls, or automatically call numbers from a pre-generated list and then automatically connect answered calls to an available agent.

The plaintiff also pointed to the FCC's July 2015 declaratory ruling, in which the FCC broadened the definition of an ATDS to encompass not only a system's "current configuration," but also its "potential functionalities."  The court again held firm, finding that there was no evidence that the HCI system could be "modified to make calls without human intervention," and thus qualify as an ATDS under the new FCC standard.  The system did not have any automated dialing functionality that customers could activate.  Further, though LiveVox offers such automated dialing systems to customers, those systems were stored on a separate server from the HCI system.  The court conceded that Stellar could "hypothetically hire a team of programmers to modify and rewrite large portions of HCI's code to enable HCI to make autodialed calls," but, even if true, that "pointless endeavor" did not mean the HCI system had the capacity or potential functionality to autodial calls.

Takeaway.  This is the latest of several cases that have re-affirmed the "human intervention" test even after the FCC's expansion of the ATDS definition.  Thus, companies looking to mitigate TCPA risk should opt for calling systems in which human intervention is an essential element.

Footnote

1 Case No. 8:15-cv-929-T-AEP (M.D. Fla. Sept. 2, 2016).

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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