A computer system that includes a point-and-click process operated by a human agent does not qualify as an automatic telephone dialing system (ATDS) for purposes of the Telephone Consumer Protection Act, a federal court in Florida recently determined, granting summary judgment in favor of the defendant.
Attempting to collect on a third-party debt, Stellar Recovery Collection Agency began calling a telephone number it believed belonged to the debtor. However, the number belonged not to the debtor but to Eduardo Pozo. He claimed he received more than 40 calls from Stellar and filed suit alleging violations of both the TCPA and the Fair Debt Collection Practices Act.
Stellar moved for summary judgment, arguing that the calls did not violate the TCPA because the company did not use an ATDS to dial Pozo’s number. Instead, the company used a program called LiveVox Human Call Initiator (HCI), which relies upon a human “clicker agent.”
Viewing a real-time dashboard, the agent must confirm in a dialogue box that a call should be launched to a particular telephone number. If a call is answered, the clicker agent refers the call to a “closer agent” who speaks with the debtor.
Because the program will not initiate a call unless a human clicker agent confirms the action, Stellar argued that it was not an ATDS as defined by the TCPA: “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.”
The key feature of an ATDS is to dial numbers without human intervention, U.S. Magistrate Judge Anthony E. Porcelli noted, and dialing systems which require an agent to manually initiate calls do not qualify as autodialers—meaning the defendant could not be liable under the TCPA.
“Most importantly, HCI does not allow any calls to be made without a Stellar agent clicking the dialogue box to initiate the calls,” the court said. “[B]ecause HCI requires intervention from its human clicker agents to make every call, HCI cannot be an autodialer.”
The plaintiff pointed to other cases involving LiveVox systems where the program was found to be an ATDS, but the court said LiveVox offers multiple types of dialing systems, including those capable of automatic dialing and those limited to human-initiated calls. Similarly, Pozo’s argument that the HCI system had the “capacity” for automatic dialing did not sway the court.
“There is no evidence that Stellar could modify HCI to make autodialed calls,” the court wrote. “HCI uses its own unique software and hardware different from other LiveVox systems. HCI is stored on a separate server from other LiveVox systems. HCI does not possess any features that may be activated to enable automated calling.…
“Of course, 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 2015 Order.”
Judge Porcelli granted Stellar’s motion to dismiss the TCPA claim but denied the motion with regard to the FDCPA count, finding a material issue of fact remained as to whether the calls to Pozo were harassing.
To read the order in Pozo v. Stellar Recovery Collection Agency, Inc., click here.
Why it matters: The court adopted a practical outlook on the issue of whether a program has the “capacity” for automatic dialing, recognizing that while the system could hypothetically be modified to eliminate human interaction, it would require a team of programmers to rewrite code and a complete change to the existing program to eliminate clicker agents and the dashboard system. Just because a company might be able “to undertake such a pointless endeavor” does not transform a non-ATDS into an autodialer for purposes of the TCPA, the court held.