District Court (Cal.) Says Use of “Clicker-Agent” to Point-and-Click on Number to Be Called Disqualified Calling System from Regulation as an ATDS

In Pozo v. Stellar Recovery Collection Agency, Inc., here, Judge Porcelli granted summary judgment to a debt collector under the TCPA who argued that no ATDS was used.

Furthermore, dialing systems which require agents to use an electronic “point and click” function to initiate calls are not autodialers because human intervention is required to initiate the calls. See Jenkins v. Mgage, LLC, 1:14-CV-2791-WSD, 2016 WL 4263937, at *1, 7 (N.D. Ga. Aug. 12, 2016) (granting summary judgment in favor of defendants and concluding that the platform at issue was not an autodialer when the agent had to log into a system, decide who to text, compose the message, and personally send the message2); Estrella v. Ltd Fin. Services, LP, 8:14-CV-2624-T-27AEP, 2015 WL 6742062, at *3 (M.D. Fla. Nov. 2, 2015) (granting summary judgment in favor of defendant when “the evidence demonstrates, at most, that the calls were placed manually with the use of human intervention through a ‘point and click function.’”); Gaza v. LTD Fin. Services, L.P., 8:14-CV-1012-T-30JSS, 2015 WL 5009741, at *1, 4 (M.D. Fla. Aug. 24, 2015) (granting summary judgment in favor of the defendant when “the agent pulled up the subject account from a database and then used his mouse to manually click on the phone number associated with the account to launch the call”); Wilcox, 2015 WL 2092671, at *5 (“If the agent selects the number to be called, then the call would be made as a result of human intervention, and the call would not be made using an [autodialer].”); Modica v. Green Tree Servicing, LLC, 2015 WL 1943222, at *3 (N.D. Ill. Apr. 29, 2015) (granting summary judgment in favor of defendant and holding that defendant’s system, which required that the operator click to initiate a call, was not an autodialer); Gragg v. Orange Cab Co., Inc., 995 F. Supp. 2d 1189, 1193–94 (W.D. Wash. 2014) (granting summary judgment in favor of the defendant when the system at issue required the agent to physically press “accept” to initiate a text message). . . The dialing equipment used in this case is almost identical to that used in Strauss. As in Strauss, Stellar’s clicker agents initiate all calls by clicking a dialogue box which appears on-screen. Dkt. No. 41, Ex. 2 ¶ 7. By clicking the dialogue box, the Stellar clicker agent confirmsthat he or she wishes to call the number. Id. HCI allows the clicker agent to view ongoing call activity and decide, based on that information, when to initiate a call to ensure that a closer agent will be available to take the call. Id. at ¶ 8. Most importantly, HCI does not allow any calls to be made without a Stellar agent clicking the dialogue box to initiate the call. Id. at ¶ 7. . . In sum, because Stellar’s HCI system required its representatives to manually dial all calls and was not capable of making any calls without human intervention, Stellar did not employ an autodialer. Because Stellar did not make autodialed calls, Stellar cannot be liable under the TCPA. This Court grants summary judgment in favor of the Defendant on Plaintiff’s TCPA claim.