Pursuant to the Telephone Consumer Protection Act (TCPA), telephone calls using an auto dialer or an Automatic Telephone Dialing System (ATDS) must stop at the request of the call's recipient. The TCPA makes it unlawful to place calls using an ATDS or artificial or prerecorded voice to any telephone number assigned to a cellular phone service. Because an ATDS has the capacity to incessantly call hundreds of thousands of people, Congress enacted the TCPA to protect consumers from this seemingly endless barrage of calls.
The FCC issued an Order in July of 2015 that defined an ATDS to include both the present and potential future capability of the dialing equipment. While this definition is on appeal to the D.C. Circuit, attorneys have looked to current judicial interpretations in pending TCPA litigation to clarify the issue.
The FCC's new interpretative rules on the TCPA reaffirm that autodialers need only have the capacity to dial random or sequential numbers, rather than the present ability to do so, and that capacity” also includes its potential functionalities. Thus, devices that may be modified to make calls without human intervention are autodialers under the new rule.
In September of 2016, a Middle District of Florida Court dismissed a case against a debt collector after determining that the dialing software used by the defendant was not an ATDS as defined by the TCPA, and further, did not have the capacity to potentially be an ATDS under the July, 2015 Order. This case follows a recent March, 2016 Southern District of Florida decision, Strauss v. CBE Group, Case No. 15-62026 (S.D. Fla. Mar. 28, 2016), which held that a similar system using a certain type of dialer also was not an ATDS system covered under the TCPA.
In Eduardo Pozo v. Stellar Recovery Collection Agency, Inc., No. 8:15-cv-929-T-AEP (M.D.Fla. Sept. 2, 2016), Defendant, a collection agent, called Plaintiff based upon the belief that it was contacting a third party to collect a debt on behalf of another. Pozo sued, alleging that Defendant's use of a LiveVox Human Call Initiator (HCI) was an ATDS under the TCPA, and therefore was in violation of the TCPA.
The district court granted summary judgment in Defendant’s favor stating that “the key feature of an ATDS is the capacity to dial numbers without human intervention.” Dialing systems which require an agent to manually initiate calls do not qualify as autodialers under the TCPA. Furthermore, dialing systems which require agents to use an electronic “point and click” function to initiate calls are not autodialers because human intervention is required to initiate the calls.
In Pozo, the calls could not be made without an agent clicking the dialogue box to initiate the call. There was no statistical algorithm to minimize agent wait time between calls, nor any random or sequential number generator. Finally, the HCI did not possess any feature that may be activated to enable automated calling.
The court found that Strauss was a case analogous to Pozo in that the Defendant’s clicker agents initiated all calls by clicking a dialogue box which appeared on-screen, thus confirming that the agent wants to call the number under consideration. This human element made the TCPA inapplicable to the autodialers in question.The experienced South Florida defense attorneys at Loan Lawyers are here to review your potential claims against a debt collector, and will help you recover the damages you deserve. To schedule a free consultation at any of our three conveniently located offices, contact Loan Lawyers today by calling (888) FIGHT-13 (344-4813).