Is minor human involvement enough to disqualify a software dialing platform as an Automated Telephone Dialing System?
A string of recent federal court decisions have focused on the level of human intervention used in making a call, demonstrating that the question of human involvement is an important and decisive inquiry that must be made before determining whether a particular device qualifies as an Automated Telephone Dialing System (“ATDS”) for the purposes of TCPA liability.
Hautuey v. IC System, Inc.
In Hautuey v. IC System, Inc. (“ICS”), the Plaintiff claimed that debt collection calls placed to cellular phone were made using an ATDS without his prior express written consent. The US District Court of Massachusetts granted summary judgment in favor of ICS, holding that what distinguishes an ATDS is the capacity of the system to dial telephone numbers from a list without human intervention. As the Judge stated:
“Both Mr. Hatuey and ICS agree that the relevant calls were placed using a system known as LiveVox HCI, and that this system requires a human ‘clicker agent’ who must manually click a button to place a call. This alone disqualifies the LiveVox HCI system as an ATDS under the TCPA…”
Ramos v. Hopele of Fort Lauderdale
In Ramos v. Hopele of Fort Lauderdale, the US District Court for the Southern District of Florida analyzed a text messaging software platform called the “EZ-texting program,” which enabled users to write, program, and schedule text messages to be sent to a curated list of consumer mobile phone numbers. The plaintiff claimed the EZ-texting program met the TCPA’s ATDS definition because it had the potential capacity to organize and create caller lists and was itself responsible for generating the numbers immediately before the text message was sent out. The court’s opinion, however, focused on who selected the telephone numbers and placed an emphasis on the level of human intervention that occurred prior to the text messages being sent. The Judge’s reasoning went as follows:
“The appropriate standard to determine whether the EZ-texting program is an automatic telephone dialing system is whether the program (1) lacks the capacity to randomly or sequentially generate phone numbers, or alternatively, (2) lacks the ability to send messages without human intervention…. [T]he program can only be used to send messages to specific identified numbers that have been inputted into the system by the customer…. [T]his amount of human intervention is sufficient to negate the EZ-texting program as an automatic telephone dialing system within the applicable standard.”
Glasser v. Hilton Grand Vacations Company
In Glasser v. Hilton Grand Vacations Company, the US District Court also focused on the level of human intervention used to complete the call. In this case, the device in question was the Intelligent Mobile Connect (“IMC”) system, which the court described as a click-to-dial system, whereby the defendant’s employee would manually click a “Make Call” button on the IMC system computer screen, which would then “launch” the call and, if picked up on the other end, transfer the call to a waiting agent. According to the plaintiff, the IMC system clearly met the ATDS definition, as the dialing function itself was not manually accomplished by the defendant’s employee, but rather by the system, which dialed the number after the employee clicked the “Make Call” button. The court, however, disagreed, noting that the plaintiff’s argument “failed to appreciate the integral part that human intervention plays in the calling process.”
Reiterating the conclusion reached by the Southern District of Florida in Ramos, the Glasser court adopted a straightforward analysis focusing on the level of human intervention that occurred – i.e., the employee selecting (or “generating”) the telephone numbers that were to be called:
“ACA Int’l makes it clear that an autodialer must both generate the numbers and dial them. Accordingly, it matters not that the computer actually dials the number forwarded to it by the clicking agent. Rather, the focus is on the agent’s human intervention in initiating the calling process. Since it is undisputed that calls cannot be made unless and until an agent clicks on the screen and forwards a telephone number to the server to be called, Defendant’s “point-to-click” system does not constitute an autodialer system under the TCPA.”
Fleming v. Associated Credit Services, Inc.
In Fleming v. Associated Credit Services, Inc., the US District Court for the District of New Jersey also analyzed whether the LiveVox system fell within the TCPA’s ATDS definition. While a majority of the Fleming court’s analysis focused on whether the LiveVox system was a predictive dialer and, if so, whether such devices were autodialers under the TCPA, it also analyzed whether the LiveVox system required enough human intervention to fall outside of the ATDS definition.
Unlike the IMC system under scrutiny in the Glasser case, the LiveVox device did not allow the “clicker agent” to bypass a number once it appeared on the agent’s screen, requiring the agent to either launch the call or log out of the system and restart it. According to the plaintiff, when combined, the functionalities of the LiveVox system were enough to make the device a “predictive dialer” (which, according to the plaintiff, fell within the TCPA’s ATDS definition) and, furthermore, did not provide for enough human intervention to fall outside of the TCPA’s scope.
The court, however, disagreed and chose to align itself with the courts that have found the TCPA itself to not apply to predictive dialers that “dial numbers from a list that was not randomly or sequentially generated when the list was created.”
The Fleming court then took on the plaintiff’s human intervention argument, wherein the plaintiff alleged that the LiveVox system lacked human intervention that was “meaningful” enough to place it outside of the reach of the TCPA. And despite its acknowledgement that “[t]he present state of the ‘human intervention test is difficult to determine,” it concluded that the LiveVox device employed enough human intervention to fall outside of the TCPA’s ATDS definition.
In its final analysis, the Fleming court focused on the fact that the call never would have been dialed automatically if a person had not at first initiated the dialing process, and that such initiation was itself enough human intervention for the device to fall outside the ATDS definition.