On December 20, the District of New Jersey granted summary judgment in favor of a defendant in a Telephone Consumer Protection Act case, finding the calling system at issue was not an automatic telephone dialing system because the system required human intervention to initiate calls.
In Collins v. National Student Loan Program, plaintiff Maurice Collins alleged he received 206 calls from NSLP in a ten-month period, some of which were placed after Collins had requested that NSLP stop calling him, in violation of the TCPA. The parties submitted cross-motions for summary judgment, focusing on the issue of whether an ATDS was used to place calls to Collins.
It was undisputed that NSLP uses two LiveVox calling systems—LiveVox HCI and Quick Connect—to place calls to borrowers. LiveVox HCI is used to call cell phones, while Quick Connect is used to call landlines. LiveVox HCI requires a caller to “physically click a dialog box to launch the call,” while the “Quick Connect system uses some predictive capabilities to call landline numbers.”
The parties agreed that only LiveVox HCI was used to initiate the calls to Collins’ cell phone. However, Collins argued that the LiveVox HCI and Quick Connect systems are “simply different ‘modes’ of operation for the same underlying LiveVox system,” therefore, the system as a whole “has the present capacity without modification to place calls from a stored list without human intervention.” NSLP put forth evidence that the two systems “are separate and distinct,” each with “its own dedicated separate hardware and software.”
In assessing whether the calls at issue were placed with an ATDS, the Court relied on the interpretation of ATDS as set forth by the Third Circuit in Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018), which held that what makes a calling system an ATDS is the “present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers.”
First, the Court determined that the LiveVox HCI system alone is not an ATDS. Collins argued the human intervention required by LiveVox HCI is not “meaningful” because the clicker agent does not have the ability to choose which number to call and has no option to decline or skip calling a number. The agent’s only option is to click a button to dial the number populated on their screen. The Court noted that the human intervention may be minimal, but “because the system cannot initiate calls without manual human intervention by a clicker agent” the system is not an ATDS.
Second, the Court determined that the LiveVox HCI system used to call Collins is separate and distinct from the Quick Connect system. In coming to this conclusion, the Court recognized that the systems are operated on separate servers, that LiveVox HCI has its own software and hardware, and that the LiveVox HCI server cannot be modified by NSLP.
Ultimately, because LiveVox HCI is separate and distinct from Quick Connect, and LiveVox HCI requires human intervention—even if minimal—the Court held Collins failed to provide any evidence that the LiveVox HCI system used to call him had the “present capacity to function as an autodialer,” and it dismissed his TCPA claim.
This is another example of courts continuing to interpret the definition of an ATDS post-ACA, while we await rulemaking from the FCC regarding the definition of an ATDS.