The Seventh Circuit Court of Appeals recently dismissed a plaintiff’s TCPA suit based on the absence of an autodialer, despite plaintiff’s declaration that when he answered defendant’s calls, he heard a “pause,” “clicking” and “dead air.”  Plaintiff also referred the Court to defendant’s website stating that the company’s capabilities included autodialers, as well as an FCC guide, stating that autodialers often result in hang ups and dead air.

In dismissing the action, the Seventh Circuit relied on a declaration from the Vice President of Business Analytics at defendant AllianceOne explaining that the system AllianceOne uses to place cell phone calls to individuals like plaintiff, lacks the capacity to autodial, and instead, requires a live representative to enter the phone number manually.  The Vice President also declared that he had reviewed the call logs in this case, which demonstrated that five of the six calls to plaintiff went to voicemail, and the sixth went unanswered.  Based on this evidence, the Seventh Circuit concluded that no reasonable juror could conclude the calls were autodialed.

The Appeals Court rejected Plaintiff’s argument that in accepting the declaration from defendant's Vice President over his own declaration about clicks and pauses, the district court improperly weighed the evidence and did not view it in the light most favorable to him.  Moreover, according to the Seventh Circuit, the fact that defendant’s website discussed the company’s capabilities to autodial failed to create any factual dispute.  The FCC guide was excluded on evidentiary grounds as hearsay.

This decision demonstrates that while a plaintiff may be able to initially plead the necessary elements of an autodialer based on allegations about “dead air” or “pauses and clicks,” this may not be sufficient to survive summary judgment, where the defendant is able to refute such allegations through contrary evidence.  By putting forth call logs, and other business records demonstrating calls were manually dialed, companies may be able to achieve early dismissal at the summary judgment stage.