Another federal court in Florida has determined that the dialing software used by a defendant was not an ATDS under the TCPA, and did not have the “capacity” to be one under the FCC’s July 2015 Order. As we have previously discussed, the FCC’s expansive definition of an ATDS to include present and potential future capability of the dialing equipment is on appeal to the D.C. Circuit. In the meantime, businesses have grappled with judicial interpretations in pending TCPA litigation for operational guidance.
The court in Eduardo Pozo v. Stellar Recovery Collection Agency, Inc., No. 8:15-cv-929-T-AEP (M.D. Fla. Sept. 2, 2016) held that a cloud-based dialing system by LiveVox, called “Human Call Initiator,” which the defendant utilized, was not an ATDS because it required agents to use an electronic “point and click” function to initiate calls. Furthermore, the dialing system lacked features that would allow the “clicker agents” to enable automated calls or the “capacity” to be an autodialer. Such human intervention negated a necessary element of the plaintiff’s TCPA claim, namely that the debt collection calls to her cell were placed using an ATDS. The court granted the defendant summary judgment on the TCPA claims.