In Meier v. Allied Interstate, LLC, Judge Gonzalo P. Curial found that while LiveVox HCI could store numbers as required by the Telephone Consumer Protection Act, because each call required human intervention, it did not qualify as an automatic telephone dialing system within the definition of the TCPA.
Plaintiff Richard Meier brought an action against Allied Interstate, LLC, alleging that Allied had contacted his cellphone using an ATDS in violation of the TCPA. Allied acknowledged that it had contacted Meier, but denied using an ATDS to do so. Both parties filed motions for summary judgment.
On review, the Court analyzed the telephone system used to contact Meier. The Court noted that the calls were made on one outbound calling system that was part of a larger calling platform. The platform included LiveVox HCI and an automated system. Both systems rely on a campaign database and an automatic call distributor to create calling campaigns, store customer data, and route phone calls to live agents. However, the systems rely on differ server pools – a manual media server pool for HCI, and an automated media server pool for the automated dialer.
Clients upload a file with phone numbers and then select campaign parameters, including which telephone to use – HCI or the automated dialer. Once a campaign is activated using the HCI system, the telephone numbers are shown to a “clicker agent,” who then initiates phone calls by clicking on individual phone numbers. Each phone number must be selected and clicked individually. Once selected, the recipient is called. If a person answers the call, the call is re-routed to a closer agent by the system. If no closer agent is free to speak with a customer, the clicker agents’ screens do not display phone numbers, meaning no calls are made.
By contrast, no clicker agent is required for an automatic campaign. Once the campaign is launched, the system automatically dials the numbers in the queue in order to keep the closer agents occupied.
The Court analyzed the TCPA’s current legal landscape and concluded that, “[s]ince the FCC’s interpretation of an ATDS was struck down, all that remains is the statutory definition of ATDS by Congress.” Based on the TCPA’s plain language, the Court concluded that HCI was not an ATDS because it “is incapable of ‘non-manual’ dialing” due to the necessity of clicker agents to actually initiate each phone call. The Court noted the “overwhelming weigh[t] of authority” of “point-and-click systems” shows that “they do not qualify as ATDS equipment ‘in light of the clicker agent’s human intervention.’”
The Court further explored whether HCI should be considered collectively with the automated system in regards to “capacity” to automatically dial phone numbers. The Court noted all of the very intentional differences and separations between the systems and reasoned that the definition of an ATDS, in order to effectuate the intent of Congress, should “reasonably cabin[] liability to telemarketers’ voluntary actions, and eliminate[] liability arising from technical components of a dialing system that Defendant elected not to use and ha[d] sought to avoid.” Accordingly, the Court concluded that the “equipment” at issue is the HCI dialer, and not the platform as a whole.
This decision contributes to the “overwhelming weigh[t] of authority,” which holds that telephone systems requiring human interaction to initiate calls are not an ATDS within the definition of the TCPA, even if they are part of larger platforms that contain separate systems with automatic dialing capacity.