Does minor human involvement disqualify a telephony device as an automatic telephone dialing system, or “ATDS,” for purposes of liability under the Telephone Consumer Protection Act? In a significant decision, a District Court in the First Circuit held that it does.
In Hatuey v. IC System, Inc., plaintiff Josie Hatuey alleged that ICS violated the TCPA and Fair Debt Collection Practices Act when it continued to place calls to his cellular phone using an ATDS despite his having informed ICS that he was not the debtor or intended recipient of the call.
Hatuey obtained the cell phone through his place of employment and received calls from ICS, which was intending to contact Brian O’Neil. Hatuey claimed that ICS violated Section 1692d of the FDCPA because the calls were intended to “annoy, abuse or harass” him. The number of calls was in dispute, and despite claiming that ICS contacted him multiple times per week, Hatuey could not offer any proof to substantiate the claim. In granting summary judgment in favor of ICS, Judge Douglas Woodlock held, “Even drawing all reasonable inferences in favor of Mr. Hatuey, this volume and pattern of phone calls does not raise the inference of an intent to harass. It only suggested that ICS sought to get in touch with the correct debtor.”
Hatuey also claimed that ICS violated the TCPA because the calls were placed to his cellular phone using an ATDS and he had not provided consent for such calls. The Hatuey Court 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: “Even if I were to accept a broad reading of the FCC’s definition of an ATDS as a system which may draw phone numbers from a database, rather than only through a random or sequential number generator, there would be no genuine issue of material fact on Mr. Hatuey’s TCPA claim. 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,” Judge Woodlock wrote.
TCPA and FDCPA cases around the country are replete with examples of plaintiffs seeking to recover damages from debt collectors for calls placed to “recycled” numbers. The Hatuey decision serves as an example that such cases can be successfully defended.