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Does minor human involvement disqualify a telephony device as an
automatic telephone dialing system, or "ATDS," for
purposes of liability under the Telephone Consumer Protection Act?
In a significant decision, a District Court in the First Circuit
held that it does.
In Hatuey v. IC System, Inc., plaintiff
Josie Hatuey alleged that ICS violated the TCPA and Fair Debt
Collection Practices Act when it continued to place calls to his
cellular phone using an ATDS despite his having informed ICS that
he was not the debtor or intended recipient of the call.
Hatuey obtained the cell phone through his place of employment
and received calls from ICS, which was intending to contact Brian
O'Neil. Hatuey claimed that ICS violated Section 1692d of the
FDCPA because the calls were intended to "annoy, abuse or
harass" him. The number of calls was in dispute, and despite
claiming that ICS contacted him multiple times per week, Hatuey
could not offer any proof to substantiate the claim. In granting
summary judgment in favor of ICS, Judge Douglas Woodlock held,
"Even drawing all reasonable inferences in favor of Mr.
Hatuey, this volume and pattern of phone calls does not raise the
inference of an intent to harass. It only suggested that ICS sought
to get in touch with the correct debtor."
Hatuey also claimed that ICS violated the TCPA because the calls
were placed to his cellular phone using an ATDS and he had not
provided consent for such calls. The Hatuey Court granted summary
judgment in favor of ICS, holding that what distinguishes an ATDS
is the capacity of the system to dial telephone numbers from a list
without human intervention: "Even if I were to accept a broad
reading of the FCC's definition of an ATDS as a system which
may draw phone numbers from a database, rather than only through a
random or sequential number generator, there would be no genuine
issue of material fact on Mr. Hatuey's TCPA claim. Both Mr.
Hatuey and ICS agree that the relevant calls were placed using a
system known as LiveVox HCI, and that this system requires a human
'clicker agent' who must manually click a button to place a
call. This alone disqualifies the LiveVox HCI system as an ATDS
under the TCPA," Judge Woodlock wrote.
TCPA and FDCPA cases around the country are replete with
examples of plaintiffs seeking to recover damages from debt
collectors for calls placed to "recycled" numbers. The
Hatuey decision serves as an example that such cases can
be successfully defended.
The Troutman Sanders' Consumer Financial Services
Law Monitor blog offers timely updates regarding the financial
services industry to inform you of recent changes in the law,
upcoming regulatory deadlines and significant judicial opinions
that may impact your business. To view the blog, click
here
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