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Telephone Consumer Protection Act (TCPA) – Auto-Dialer Uncertainty

Were you aware that when you tell a bill collector (including a student loan collector) to stop calling your cell phone, they must do so immediately?  Well usually.  It depends upon the type of telephone system the collector is using.  If they are manually dialing the phone, then they can continue to call you.  The reason is simple:  there is a human being on the other side making a conscious decision to call you at a certain time and date seeking payment.

But what if it is a machine calling you?  The Telephone Consumer Protection Act (TCPA) states that calls using an auto dialer or an ATDS must stop if you ask them to stop.  The reason is clear here as well:  a machine is capable of calling hundreds of thousands of people incessantly following a pre-determined script or campaign.  It often seems that nothing can stop it.  So a law was enacted to help protect people from a barrage of calls and save valuable minutes on their cell phone plans.  I had a client just last week tell us that when she spoke with someone asking the calls to stop, she was told she was on an autodialer and the calls couldn’t be stopped.  Really.  Well that statement certainly made it into a Complaint we prepared for filing.

In the last couple years, the industry has attempted to change its equipment to get around the TCPA.  They say that this equipment is TCPA compliant.  The equipment uses some parts human and some parts machinery.  So how much human intervention is enough to allow for the calls to continue?   The industry has taken to using entire systems that as a whole appear to be an ATDS, but each component standing on its own may not independently be an ATDS.  What capacity must the equipment have in order to fall under the TCPA’s protections? The answer I’m afraid is less than certain.

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.  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, attorneys on both sides have grappled with judicial interpretations in pending TCPA litigation for 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. Stellar argued that the LiveVox HCI system that it used to call the Plaintiff required human intervention to launch each call, did not have the capacity to auto-dial and contained no predictive functionality or random or sequential number generating abilities and therefore did not constitute an ATDS under the TCPA.  Thus, 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.  The case seemed to focus on how the system was presently used as opposed to what kinds of calls it could be capable of making if it were theoretically enhanced or modified.

This case follows a Southern District of Florida case, Strauss v. CBE Group, (Case No. 15-62026), which held a few months ago that a similar system using a Noble Systems Predictive Dialer also was not an ATDS system covered under the TCPA.

While this human clicker initiated call issue has not been analyzed by the Eleventh Circuit, we now have two Florida federal opinions that have seemed to take a step away from the FCC’s expansive definition of ATDS.  And until the D.C. Circuit rules, we are unlikely going to have much clarity on the situation.

In our cases we like to argue that a system that is presently capable of making calls as an ATDS is in fact an ATDS.  Much like a Class 3 firearm, just because you put one round in the chamber, or set it to three burst fire or single fire, does not make it any less of a Class 3 automatic firearm governed under federal law.  We are not looking at hypothetical modifications of an existing system, we are looking at an existing system – and all of its components in order to show it is really an ATDS.  In any event, de mimis human contact to click a button to start a call that is pre-programmed as to its number, frequency, time of day etc. should still be considered an ATDS call.

We are seeing regular violations of the TCPA in student loan cases where the borrower continues to be contacted despite asking all calls to their cell phones cease.  These consumer violations can be invaluable in settling student loan debt.  For more information, please contact Christie D. Arkovich, P.A. and see our section Creditor Harassment on our website.

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