When plaintiffs file class action lawsuits under the Telephone Consumer Protection Act (TCPA), they often challenge the definition of an “automatic telephone dialing system” (ATDS), i.e. an autodialer, as the TCPA prohibits calls to cell phones using an ATDS without the prior express consent of the called party.
Plaintiffs routinely argue that the definition is expansive and includes all dialing equipment that has the capacity to store or produce, and dial random or sequential numbers without human intervention, even if it is not presently used for that purpose. This has been a contentious issue in TCPA litigation as judges sometimes determine that the capacity of dialing equipment is almost limitless.
However, on September 2, 2016, Judge Anthony E. Porcelli of the Middle District of Florida granted defendant’s motion for summary judgment and ruled that Stellar Recovery Collection Agency, Inc. did not use an autodialer to call plaintiff Eduardo Pozo to collect a debt owed to Dish Network, and thus did not violate the TCPA. See Pozo v. Stellar Recovery Collection Agency. Inc., Case No. 15-cv-00929 (M.D. Fla. Sept. 2, 2016).
In his common sense approach, Porcelli reviewed defendant’s web-based dialing program called LiveVox Human Call Initiator (HCI), which it used to assist its representatives in making the calls. While LiveVox provides other systems capable of autodialing calls, the judge determined that was irrelevant as the HCI system used by Stellar required each call to be initiated by a human “clicker agent."
The judge ruled that because HCI uses its own unique software and hardware and does not incorporate any random or sequential number generator or possess any features that may be activated to enable automated calling, it is not an ATDS as defined by the TCPA.
This is a very positive ruling for defendants in TCPA class actions as the judge focused on the specific dialing features and capabilities of the HCI system and did not rely on hypothetical uses of the dialing equipment.
If you have questions on whether your dialing equipment is considered an ATDS as defined by the TCPA, please contact me for further information.