In Modica v. Green Tree Servicing, LLC, the Northern District of Illinois limited the scope of what constitutes an Automatic Telephone Dialing System (ATDS) under the Telephone Consumer Protection Act. Judge Zagel found that a system requiring an agent to manually access a consumer's telephone number from a computer server and then "click" to dial that number did not constitute an ATDS. Importantly, the Court found this to be true despite the fact that the telephony system also had the potential to dial numbers without agent intervention.
The underlying facts of the case involved the plaintiffs' failure to pay their mortgage loan, and the defendant's attempt to collect the debt owed. Defendant used two methods to place calls to the plaintiffs. The first system was an Aspect Unified IP predictive dialer that generated more than 100 calls per minute and which required an agent to be logged into the dialer from the agent's computer. The Court found that the first system was an ATDS. The second system was a custom-built software interface that accessed the plaintiffs' phone numbers from a server and required an agent to "click" the phone number on a screen in order to dial it. The plaintiffs claimed that the defendant placed more than 130 phone calls to their cell phone numbers during a six-month period using the click-to-dial method. The Court determined that the second system was not an ATDS.
In reaching its determination, the Court relied on another recent Northern District of Illinois opinion in which the defendant could either make calls using a predictive dialer or by manual means, whereby an agent dialed numbers on the keypad of a desk phone. In that case the court found that, because the desk phones could be used independently of the dialer (without logging into the server or a computer), the phones did not constitute an ATDS. Applying this rationale, the Modica court found that the click-to-dial method did not "store or produce telephone numbers to be called on call center computers and phones" because it required an agent to be connected to the server to access the customer phone number. The agent could also use the click-to-dial method without being logged into the dialer. Thus, the Court concluded that the click-to-dial calls received by the plaintiffs were not made with an ATDS because the agent was connected to the server, but not logged into the dialer. In addition, the Court rejected the plaintiffs' argument that the system was an ATDS because the agent had the capacity to call numbers by logging into the dialer. Rather, the Court determined that, because the defendant "would not have the capacity to make auto-dialed calls unless at least one additional step was taken: [where an agent] would have to log into the Dialer," and because the click-to-dial system "was not capable of dialing numbers without human intervention," the calls were not made using an ATDS.
Thus, the Modica decision rejects the idea that any system that has the potential capacity to dial numbers by automated means is an ATDS. Moreover, Modica finds that a telephony system can be used to permissibly call cell phone numbers under the Telephone Consumer Protection if it requires human intervention to dial numbers.
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