Human Intervention in the Absence of FCC Guidance: Timing is everything

January 14, 2020

By: Joann Needleman and Ann E. Lemmo, Clark Hill PLC.

Still without guidance

The industry is still without guidance on the definition of “automatic telephone dialing system” under the Telephone Consumer Protection Act (TCPA) a year after the Federal Communications Commission (FCC) ended its supplemental comment period.

The lack of guidance has left the courts to determine what factors of dialing equipment qualify as an ATDS. One of the court-created elements is human intervention. Courts have determined that human intervention is a determinative factor in deciding whether a system qualifies as an ATDS. It is important to note that determining human intervention is based on a case-by-case basis and not all courts subscribe to the same definition.

Courts have consistently found that the control over the timing of the communications determines whether there is sufficient human intervention.

When there is sufficient human intervention a TCPA claim fails because the equipment is not considered an ATDS. “[T]he human-intervention test turns not on whether the user must send each individual message, but rather on whether the user (not the software) determines the time at which the numbers are dialed.” Duran v. La Boom Disco, Inc., 369 F.Supp.3d 476 (E.D.N.Y. 2019).

Below are a few examples of methods used for calls and text messages that courts have found qualify as human intervention. 

A. Calls

Courts are interested in the control over the timing of the communication, rather than the dialing of the numbers. Human intervention does not go so far as to require the agents to dial all ten digits of a phone number manually. Such interpretation would make “…any phone with a speed-dial feature—i.e. nearly all phones— [q]ualify as an ATDS.” Maddox v. CBE Grp., Inc., No. 1:17-CV-1909-SCJ, 2018 WL 2327037 (N.D. Ga. May 22, 2018). 

While a dialing of the number may be automatic, the initiation of the call must involve human intervention. Courts believe “it matters not that the computer actually dials the number forwarded to it by the clicking agent. Rather, the focus is on the agent’s human intervention in initiating the calling process.”

Glasser v. Hilton Grand Vacations Co., LLC., 341 F. Supp. 3d 1305 (M.D. Fla. 2018), appeal dismissed sub nom. Melanie Glasser v. Hilton Grand Vacations Company, LLC, No. 18-14947-J, 2018 WL 7504742 (11th Cir. Dec. 24, 2018).

This intervention has been recognized as a “point-to-click” in which the system puts a number on an agent’s screen and the agent is required to press a button to initiate the call. 

There are a majority of courts that hold that the use of

(1) a clicker agent to manually click and launch the calls and

(2) a closer agent to speak with the consumer once the call is picked up is sufficient for human intervention.

See Schlusselberg v. Receivables Performance Mgmt., LLC, No. CV 15-7572(FLW), 2017 WL 2812884 (D.N.J. June 29, 2017); Pozo v. Stellar Recovery Collection Agency, Inc., No. 8:15-CV-929-T-AEP, 2016 WL 7851415 (M.D. Fla. Sept. 2, 2016); Fleming v. Associated Credit Services, Inc., 342 F.Supp.3d 563 (D. N.J. 2018); Ammons v. Diversified Adjustment Serv., Inc., No. 218CV06489ODWMAAX, 2019 WL 5064840 (C.D. Cal. Oct. 9, 2019); Collins v. Nat’l Student Loan Program, 360 F. Supp. 3d 268 (D.N.J. 2018). 

B. Text Messages

For text messages, human intervention typically must be involved from the beginning and not only at the time when the message is sent.

See Blow v. Bijora, Inc., 855 F.3d 793 (7th Cir. 2017); Luna v. Shac, LLC, 122 F.Supp.3d 936 (N.D. Cal. 2015); Gaza v. Auto Glass Am., LLC, No. 8:17-CV-1811-T-27AEP, 2018 WL 5775915 (M.D. Fla. Nov. 2, 2018); Ramos v. Hoppele of Ft. Lauderdale, LLC, 334 F.Supp.3d 1262 (S.D. Fla. 2018).

Until…

While the individual steps alone have been subject to differing interpretations on whether there is human intervention, courts have held that human intervention is found where the sender uses all four steps together.

Until the FCC clarifies the definition of an ATDS, the courts and litigants will continue to try and hash out the scope and definition of an ATDS. Until then, the industry will be left to monitor and adjust to the court trends in what defines an ATDS. 

Your Authors:

DAKCS Afterword: 

Utilizing an Automated Telephone Dialing System (ATDS) in collections is one of the largest and most controversial topics in today’s landscape, DAKCS discusses the current dialing landscape and problem, compliant solutions, and the process of the Click-to-Call solution.

TCPAWorld’s Quick Hitter article: Court finds “Artificial or Prerecorded Voice” is not a Legal Conclusion (But “Predictive Dialer” and “ATDS” Are!) points to a heavy discrepancy on definition and terms when it comes to this topic.

We are sure you have heard by now… The Supreme Court of the United States has agreed to hear arguments on the Constitutionality of the TCPA. Click here to read some of the predictions of how things could go. 

It will be an exciting year!

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