Glass Half Full: Court Finds FCC’s Prior Rulings Still Intact, But That Defendant’s Clicker System Not an ATDS under the TCPA (And How This All Squares With Marks v. Crunch)
Glasser v. Hilton Grand Vacations Co., No. 8:16-cv-952-JDW-AAS, 2018 U.S. Dist. LEXIS 162867 (M.D. Fla. Sept. 24, 2018) makes the twenty fifth case on our Post-ACA Int’l ATDS Scorecard. And this one falls into the same camp as Maddox v. CBE Group in holding that the “human intervention” test from the FCC’s predictive dialer rulings survive ACA Int’l, and the defendant’s clicker system was not an ATDS under this standard.
Decided just four days after Marks v. Crunch (but not addressing the opinion), the court in Glasser held without much fanfare (and not much explanation either) that “ACA Int’l left intact earlier FCC rulings that the ‘basic function of an autodialer is to dial numbers without human intervention.” Notably, just like the Somogyi case out of New Jersey, the court took the Third Circuit’s recent decision in Dominguez v. Yahoo! to mean that the FCC’s prior predictive dialer rulings remain valid because the court there said that, in light of ACA Int’l, it would “interpret the statutory definition of an autodialer as we did prior to the issuance of the 2015 Declaratory Ruling.” Notably this portion of the ruling is inconsistent with the new Fleming case handed down on Thursday that the Czar just wrote about today.
The court then applied the “human intervention” test to the defendant’s Intelligent Mobile Connect system (“IMC System”), focusing on “the agent’s human intervention in initiating the calling process.” According to the court, here’s how the system worked:
Defendant compiled a list of numbers belonging to its customer base;
The IMC System automatically retrieved and presented a customer’s name and phone number from that list to a human clicker agent;
The agent would click a “make call” button to “launch” a call;
Software on the defendant’s server would dial the number;
The IMC System analyzed if there was a live speaker on the line, and if so, transferred the call to a waiting agent.
Through this process, agents controlled the “pace of the calls” and calls could not be launched using the “make call” button if there were no available agents. Based on the evidence of how the IMC System worked, the court found that “human intervention is required before a phone call could be placed,” and as such, the system was not an ATDS.
Notably, the court was unmoved by the opinion of the plaintiff’s expert Randall Snyder that “every single call in the IMC System is automatically dialed by computer software by a queue of telephone numbers,” and “while no human being is on the phone.” This was because “ACA Int’l makes clear that an autodialer must both generate the numbers and dial them,” thus:
[I]t 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.
The court also distinguished the IMC System from a predictive dialer because it did not use any predictive algorithm or function to engage in predictive dialing. Instead, “clicker agents control the pace of the calling based on what they observe at their workstations.”
Glasser is in line with many of the other decisions holding that similar “click to dial” systems do not qualify as an ATDS under the “human intervention” test. And the court here reached this conclusion despite the presence of some measure of automation, including in the selection and retrieval of phone numbers, and the automated monitoring of calls for a live connection. However, the fact that no calls could be made without an agent physically clicking a “make a call” button was enough human intervention in this case to avoid classification as an ATDS.
So how does this ruling square with Marks?
For one, it’s at odds with the conclusion by the Marks court that ACA Int’l invalidated all prior FCC ATDS rulings. But other than that, there isn’t a whole lot of comparison to draw here. That’s because human intervention was addressed by Marks in a quick paragraph rejecting Crunch’s argument that “a device cannot qualify as an ATDS unless it is fully automatic, meaning that it must operate without any human intervention whatsoever.” The court noted that by calling the “relevant device” an “automatic telephone dialing system,” Congress “made clear that it was targeting equipment that could engage in automatic dialing, rather than equipment that operated without any human oversight or control.” But beyond noting that human intervention didn’t include “flip[ping] the switch on an ATDS,” or manually “add[ing] phone numbers,” to a dialer, the court didn’t go any further in exploring what it means to “automatically dial” a phone number. So, for now, it’s left up to the lower courts applying the human intervention test (and/or holding it to still be valid) to determine what kind, and how much “human intervention” is required before a device is ruled out as an ATDS.