In a report and recommendation issued in the U.S. District Court for the Eastern District of Michigan, a Magistrate Judge found that LiveVox, Inc.’s HCI (Human Call Initiator) dialing system is not an autodialer subject to the Telephone Consumer Protection Act (“TCPA”). The Magistrate Judge recommended that the Court grant partial summary judgment dismissing some of the plaintiff’s claims against Stellar Recovery, Inc., a debt collector hired by Comcast Corporation to collect on past due bills.
The plaintiff in Smith v. Stellar Recovery, Inc., et al., No. 15 cv-11717-SJM-MKM (E.D. Mich.), sued Comcast and Stellar alleging that the companies violated the TCPA, state privacy laws, and the Fair Debt Collection Practices Act. The plaintiff claims that Stellar used an autodialer to knowingly and willfully call her cell phone 53 times regarding a debt owed to Comcast despite the fact that she had not consented to such calls and she had filed for Chapter 7 bankruptcy. The TCPA prohibits companies from using an autodialer to call consumers on their cell phones, unless the consumer has provided prior express consent to receive such calls. Stellar conceded that some of the calls were made using an autodialer system—the RPC (Right Party Connect) system. Stellar argued that the bulk of the calls, however, were made using LiveVox’s HCI system, which Stellar argues is not an autodialer.
Under the TCPA definitions, an “automatic telephone dialing system” (or “autodialer”) is “equipment which has the capacity—(A) to store or produce telephone numbers to be called using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). In prior rulings and orders, the Federal Communications Commission (“FCC”) has emphasized that the “basic function” of an autodialer is the “capacity” to dial phone numbers “without human intervention.” In re Rules & Regs. Implementing the TCPA of 1991, 30 F.C.C.R. 7961, 7973 (FCC July 10, 2015) (“TCPA Order”). Nevertheless, the FCC has emphasized a broad interpretation of the word “capacity.” Autodialers need only have the “capacity” to automatically dial numbers generated randomly or sequentially, they need not have the “present ability” to do so. Id. at 7972-74. The FCC has also previously ruled that “predictive dialers” fall within the meaning of the statutory definition of an autodialer. Id.
The Magistrate Judge reviewed and contrasted to the two dialing systems that Stellar used. Both LiveVox systems are cloud based systems that are accessed by clients, like Stellar, through a web portal. For both systems, managers at Stellar create “campaigns”—groups of phone numbers to be called that are then “scrubbed” by placing certain restrictions on dialing based on legal considerations, such as local law where the debtor resides. With the RPC system, the campaign is then initiated by a Stellar manager simply clicking “play.” From that point on, the LiveVox system automatically dials the numbers in the campaign and uses a “predictive functionality,” meaning that it times the dialing of each call based on predictions regarding when a live operator or agent will likely be available to handle the call. When a live person answers the phone on the other end, the software automatically transfers the call to the next available agent.
The HCI system is less automated. When the Stellar manager clicks “play,” LiveVox does not begin dialing numbers. Instead, it presents telephone numbers to “clicker agents,” who must select and confirm each individual telephone number—by pointing and clicking—before LiveVox will place the call. “Closer agents,” who handle the calls when a live person answers, must sit and wait for calls to connect before a call is transferred to them. Thus, the HCI system does not have the same predictive functionality. Moreover, unlike with the RPC system, the clicker agent controls, on an individual basis, when each call is made.
The Magistrate Judge concluded that the HCI system is not an autodialer because the system cannot dial numbers without human intervention—the participation of the clicker agents who initiate each phone call. In other words, while the system employs sophisticated technology, it is not automated because a human must initiate each call, one call at a time. The Magistrate Judge rejected the plaintiff’s argument that because the FCC construes the term “capacity” very broadly, the Court should rule that the HCI system has the potential future capacity to be altered to function like an autodialer. The Magistrate Judge relied on LiveVox’s product management director, who testified that the HCI system includes both software and hardware components, none of which are shared with the RPC system or any other autodialing system. Plaintiff did not present any proof that the HCI system could tap into any autodialing system or otherwise be reconfigured to operate as an autodialer.
Finally, the Magistrate Judge pointed to authority from other districts. In Pozo v. Stellar Recovery Collection Agency, Inc. No. 15-cv-929-T-AEP, 2016 WL 7851415 (M.D. Fla. Sept. 2, 2016), the Middle District of Florida also ruled that LiveVox’s HCI system is not an autodialer. Moreover, several other courts have upheld the use of similar “point and click” dialing systems. For example, in Strauss v. CBE Group, Inc., 173 F. Supp. 3d 1302 (S.D. Fla. 2016), the Southern District of Florida upheld the use of a system that was configured in a way that required the calling agent to manually initiate each call by clicking a computer mouse or pressing a keypad.
The Magistrate Judge’s careful analysis and comparison of two different dialing systems provides a helpful explanation of what does and does not constitute an autodialer for purposes of the TCPA. The ruling is also good news for vendors who have endeavored to create modern dialing systems that comply with the TCPA.