Eduardo Pozo v. Stellar Recovery Collection Agency, Inc., No. 8:15-cv-929-T-AEP (M.D.Fla. Sept. 2, 2016)

Defendant called Plaintiff believing it was contacting a third party to collect debt on behalf of another. Plaintiff filed suit, asserting various claims including a claim for violation of the TCPA. The TCPA makes it unlawful to, among other things, initiate calls using any Automatic Telephone Dialing System (ATDS) or artificial or prerecorded voice to any telephone number assigned to a cellular telephone service. At issue was whether a LiveVox Human Call Initiator (HCI) is an ATDS giving rise to liability under the TCPA.

Granting summary judgment in Defendant’s favor, the Court initially noted that “the key feature of an ATDS is the capacity to dial numbers without human intervention.” Dialing systems which require an agent to manually initiate calls do not qualify as autodialers under the TCPA. Furthermore, dialing systems which require agents to use an electronic “point and click” function to initiate calls are not autodialers because human intervention is required to initiate the calls.

After citing case dismissing TCPA claims where calls were manually dialed, the Court characterized Strauss v. CBE Group, Inc., 15-62026 (S.D. Fla. Mar. 28, 2016) as “analogous to the instant matter,” pointing out that Defendant’s clicker agents initiate all calls by clicking a dialogue box which appears on-screen. By clicking the dialogue box, the clicker agent confirms that he or she wishes to call the number. HCI allows the clicker agent to view ongoing call activity and decide, based on that information, when to initiate a call to ensure that a closer agent will be available to take the call. Most importantly, HCI does not allow any calls to be made without an agent clicking the dialogue box to initiate the call. HCI does not use any statistical algorithm to minimize agent wait time between calls, nor does it incorporate any random or sequential number generator, nor does HCI possess any feature that may be activated to enable automated calling.

The Court concluded its discussion of Plaintiff’s TCPA claim by recognizing that in July 2015, the FCC issued new interpretative rules on the TCPA, reaffirming that “autodialers need only have the ‘capacity’ to dial random or sequential numbers, rather than the ‘present ability’ to do so,” stating that “capacity” is not limited to an autodialer’s current configuration but also includes its potential functionalities. Thus, devices that can be modified to make calls without human intervention are autodialers under the new rule.

Noting that the FCC “declined to meaningfully identify systems which have no potential functionality to make autodialed calls,” the Court first questioned whether the Order applied, since all calls were made before release of the Order. Concluding the result remained unchanged even if the Order applied, the Court pointed out that there was no evidence Defendant could modify HCI to make autodialed calls. HCI was stored on a separate server from other LiveVox systems, it did not possess any features that may be activated to enable automated calling and Defendant cited numerous cases after the 2015 Order illustrating that electronic systems using point and click software are not autodialers. While, “[o]f course, [Defendant] could hypothetically hire a team of programmers to modify and rewrite large portions of HCI’s code to enable HCI to make autodialed calls, eliminating clicker agents, the dashboard, and all human input, [. . .] the fact that [Defendant] might be able to undertake such a pointless endeavor does not mean that HCI has the ‘capacity’ to be an autodialer or that it has the ‘potential functionality’ to be an autodialer within the meaning of the TCPA and the 2015 Order.”