The District of Nevada recently applied the D.C. Circuit’s decision in ACA International v. FCC and granted summary judgment in favor of The CBE Group on plaintiff’s Telephone Consumer Protection Act claim. In doing so, the Court held that the defendant’s telephone system does not qualify as an automatic telephone dialing system.
The plaintiff, Gretta Marshall, filed suit against third-party debt collector, CBE. She alleged that the defendant violated the TCPA and the Fair Debt Collection Practices Act through its collection efforts. The record reflects that CBE agents placed calls using a “manual clicker application” that required the call agent to on a computer screen to place a call. Calls were sent via a cloud-based connectivity pass-through.
The Court analyzed CBE’s “communication infrastructure” and held that in light of the ACA v. FCC decision, it would focus upon the statutory language defining an ATDS. More specifically, whether the telephone equipment has the capacity to produce or store phone numbers to be called using a random or sequential number generator.
The Court considered whether “point and click” dialing systems that are used with cloud-based pass-through services qualify as ATDS despite human intervention that is required to place the call. In doing so, the Court found that the manual clicker application was “integral to initiating outbound calls” and, thus, was not an ATDS.
The Court also found that the plaintiff failed to present any evidence that that the cloud-based pass-through qualified as an ATDS.
This decision is one of the first following the recent D.C. Circuit Court of Appeals interpretation of an ATDS.
Takeaway: When evaluating whether a telephone dialing system qualifies as an ATDS, courts are now more likely to give less weight to “potential capabilities” while, instead, focusing upon the “capacity to store or produce telephone numbers to be called, using a random or sequential number generator.”
Email the author at rnewman@hinchnewman.com if you are interested in learning more about this topic, including the implementation of preventative telemarketing compliance protocols.
