A Telephone Consumer Protection Act defendant successfully persuaded a Michigan federal court judge that its calling system was not an automated dialing system because there was significant human involvement in dialing phone numbers.

Plaintiff Lakisha Smith alleged that defendant Stellar Recovery Inc. called her cell phone dozens of times without her consent about a debt in violation of both the Fair Debt Collection Practices Act and Telephone Consumer Protection Act. Under the TCPA, it is unlawful to use an automated telephone dialing system (ATDS) to make debt collection calls without prior consent. Defendant admitted to not obtaining consent, but disputed that some of the calls were made to plaintiff with an ATDS. Accordingly, Defendant filed for partial summary judgment on that issue.

Defendant made debt collection calls by uploading a list of numbers to a third-party program called LiveVox Human Call Initiator (HCI). Once the program was initiated, HCI would send the telephone numbers to human “clicker agents” who had to “accept and confirm each individual telephone number” in order for the call to be placed.1

One of the key characteristics of an ATDS is the ability to dial phone numbers without “human intervention.” Accordingly, a system that is unable to dial phone numbers without a degree of human involvement is not considered to be an ATDS.

Defendant argued that the HCI program is unable to dial phone numbers without “human intervention” because the “the equipment cannot store numbers, nor can it dial numbers without the call being initiated by the clicker agents.”

The Court agreed, finding that because of the function of the clicker agent confirming each telephone number individually, human intervention is “clearly required” to dial numbers with the HCI system. The Court pointed to other cases in which calling systems that relied on “human clickers” to initiate calls were found to not be an ATDS. In fact, one federal judge in Florida had previously analyzed Defendant’s HCI system, also ruling that it was not an ATDS.

The Court also found that the HCI system did not have the “capacity” to dial numbers without human intervention. Quoting the Florida federal judge’s ruling on the HCI system, the Court found:

“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, eliminating clicker agents, the dashboard, and all human input. However, the fact that Stellar 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 [FCC’s] 2015 Order.”

Accordingly, Judge Murphy granted Defendant’s partial summary judgment on the grounds that the HCI system is not an ATDS.

Why it matters: This decision adds to the growing progeny of cases finding that a calling system that is “clearly an advanced and efficient method of contacting debtors [or consumers]” does not mean that it is de facto an ATDS. Systems that require employees to operate their calling system and initiate calls do not qualify as an ATDS.