Another U.S. District Court Rules Human Call Initiator is Not an ATDS

Last week a federal judge in Illinois held that the LiveVox Human Call Initiator was not an Automated Telephone Dialing System (ATDS) under the Telephone Consumer Protection Act (TCPA). The case is Arora v. Transworld Systems Inc. (Case No 15-cv-4941, U.S.D.C., Northern District of Illinois, Eastern Division). 

In doing so, the Illinois district court followed the position of other recent federal court opinions in 1) Pozo v. Stellar Recovery Collection Agency, Inc. (Middle District of Florida), 2) Smith v. Stellar Recovery Collection Agency, Inc. (Eastern District of Michigan).  insideARM wrote about the Pozo case on September 6, 2016 and the Smith case on February 8, 2017.

A copy of the court’s Memorandum Opinion can be found here. 

Background 

Arora filed suit against Transworld Systems Inc. (TSI) alleging that TSI violated the TCPA (47 U.S.C. § 227 et seq.) by calling his cell phone with an ATDS and without prior express consent.  TSI filed a motion for summary judgment.

Editor’s Note: A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.

Specifically, Arora contended that between August 25, 2014 and November 17, 2014, he received seven calls on his cell phone from a telephone number ending in 6101. According to Arora, this number is owned or controlled by TSI. Furthermore, Arora alleged that between September 5, 2014 and November 29, 2014, he received five calls on his cell phone from a telephone number ending in 2831. Arora maintains that this number is also owned or controlled by TSI.

When calling Arora, TSI argues it used a web-based dialing program called Live Vox Human Call Initiator (HCI). 

The court noted the following facts:

“According to Jonathan Klein (Klein), Senior Compliance Manager for TSI, the Human Call Initiator is a human initiated and human controlled dialing system that requires a TSI agent to manually initiate every call. Each call initiated from a Human Call Initiator must be initiated by a human “clicker agent.” The clicker agent is responsible for confirming that the number to be called is the correct number, and after doing so, launching the call by physically clicking the number. When any TSI representative uses the Human Call Initiator system, he or she must click on a dialogue box to confirm the launching of a call to a particular telephone number. The call cannot be launched unless the clicker agent clicks on the dialogue box.

The TSI clicker agent is also able to monitor a real-time dashboard that contains information about “closer agent” availability, the number of calls in progress, and related metrics. The closer agent is the agent designated by TSI to speak with the call recipient. When a call made by the Human Call Initiator is answered, it is transferred to the closer agent to engage the consumer in a conversation. 

Arora disputes TSI’s assertion that it used a Human Call Initiator system to call his cell phone. Furthermore, Arora claims that, even if TSI used a Human Call Initiator, he has exposed “hidden autodialing potential” in violation of the TCPA.” 

The opinion was written by the Honorable Charles P. Kocoras, United States District Court Judge. The Kocoras wrote: 

“To succeed on his TCPA claim, Arora must show that TSI made the telephone calls with an ATDS. Arora fails to meet this requirement.

In its motion for summary judgment, TSI argues that the calls it placed were not made with an ATDS or any other equipment subject to the TCPA. Instead, TSI maintains that the calls to Arora were made through the Human Call Initiator – “a system specifically designed to comply with the requirements of the TCPA.” In response, Arora claims that TSI did not use a Human Call Initiator to call him.

However, Arora offers no evidence to support his allegation. For that reason, Arora’s unsubstantiated claim that TSI called him using a technology other than a Human Call Initiator is rejected. 

Arora, in an attempt to save his claim, also argues that the Human Call Initiator is an ATDS. According to Arora, his background as a software developer and his own research “shows that [a Human Call Initiator] has the potential capability to be an Automated Telephone Dialing System . . . as required by TCPA.”

But, TSI argued that Arora’s unsupported claim was contradicted by the recent federal court opinions noted above. Judge Kocoras reviewed those cases and agreed with TSI and the other district courts. He wrote:

“Therefore, this Court, like the previous Courts who have considered this technology, finds that that Human Call Initiator system does not constitute an autodialer. Because all calls from TSI were made with human intervention, and not with an ATDS, Arora’s TCPA claim fails as a matter of law. 

For the aforementioned reasons, the Court grants the motion and enters judgment in TSI’s favor and against Arora. It is so ordered.” 

insideARM Perspective 

This case is another positive statement for the LiveVox Human Call Initiator. insideARM contacted representatives from both LiveVox and TSI for comment on the case.

Mark Mallah, General Counsel at LiveVox said:

“LiveVox is very excited that our HCI system has now won 4 out of 4 cases, each one in a different circuit. We think that this provides very strong validation for our approach to TCPA risk mitigation and for point and click technology in general. We have always believed that the controls we have in place are more than sufficient to address the TCPA’s challenges, and we are gratified that four different courts agree with us.”

David Zwick, Chief Financial Officer at TSI, said:

“We are pleased with the court’s ruling in favor of TSI on summary judgment.  Compliance with the TCPA, as well as all rules and regulations, is something we take very seriously at TSI.  We have made significant investments in our Compliance Management System and we intend to continue to vigorously defend ourselves against meritless litigation.  This case further re-enforces the need for Washington to modernize the TCPA to reflect today’s mobile consumer.”