Finding that the telephone system used by the defendant was not an automatic telephone dialing system (ATDS), a Florida federal court dismissed a putative TCPA class action.

Maria Ferrer sued Bayview Loan Servicing and related defendants, alleging they ran afoul of the TCPA as well as the Fair Debt Collection Practices Act (FDCPA) and Florida state law. She claimed that between February 21, 2014, and October 23, 2014, Bayview called her 53 times, sometimes multiple times in a single day. Forty-four of those calls were made to her cellphone in violation of the TCPA, the plaintiff said, with the remainder made to other phone numbers.

The defendants asserted that Ferrer disclosed her cellphone number on her mortgage forms and identified it as the best contact number, which is why they used it when she became delinquent on her mortgage payments.

In support of their motion for summary judgment, the defendants provided the declaration of Oscar Gutierrez, a senior contact center analyst, IT Global Services, for Bayview. In the declaration (and his deposition testimony), Gutierrez stated that he was an employee of Bayview and attested that the information he provided was based on his personal knowledge gained through his employment of the telephonic hardware and software systems used in the course of Bayview’s business, as well as on a review of information related to Ferrer’s account.

Ferrer attacked the sufficiency of Gutierrez’s declaration to no avail, as U.S. District Court Judge Robert N. Scola Jr. granted the defendant’s motion for summary judgment, finding no genuine issue of material fact with respect to whether Bayview used an ATDS to place calls to Ferrer’s cellphone.

“In his declaration, Gutierrez asserts that the forty-four remaining calls that Bayview placed to Ferrer’s cell phone during the timeframe alleged in the amended complaint were placed through the Avaya X1 Platform, which operates separately from Bayview’s servicing platform, and does not store telephone numbers,” the court said. “Gutierrez asserts that the primary function of the Avaya Platform is to permit a user to dial phone calls using a computer keyboard and mouse, and that the calls must be manually dialed. In fact, the Avaya Platform cannot place calls without human input, and it is not able to dial predictively, store, or produce telephone numbers independently.”

The plaintiff argued that Gutierrez also admitted that Bayview used another system called Presence, which is an autodialer, to execute certain outbound campaigns, including calls placed to her. The court rejected this argument, reasoning that “the calls were placed to numbers other than Ferrer’s cell phone … which are not alleged to be numbers subject to the TCPA in this case.” According to Judge Scola, “The mere fact that Bayview utilizes an autodialer in some instances does not subject Bayview to TCPA liability in this case absent evidence that the autodialer was used to contact Ferrer on her cell phone in a manner prohibited by the TCPA. There is no such evidence in the record. Accordingly, Bayview is entitled to summary judgment.”

To read the order in Ferrer v. Bayview Loan Servicing, LLC, click here.

Why it matters: This decision adds to the growing body of cases that take a practical approach to the ATDS question by evaluating the level of human intervention used to place the calls. While we await the D.C. Circuit’s decision on the 2015 FCC order, this decision provides further guidance to companies in evaluating whether their system might be deemed an ATDS. Notably in this case, despite the fact that the defendants used an autodialer to make some of the calls, the court recognized that none of those calls were at issue in the plaintiff’s TCPA allegations. As the system used to call her cellphone was not an ATDS, the court granted summary judgment for the defendants.