District Court (N.J.) Says LiveVox’s Human Call Initiator is not an ATDS

Here, Defendant argues that LiveVox’s HCI system is not by definition an ATDS under the TCPA. Defendant reasons that because HCI specifically integrates human intervention, the system does not possess the automated capabilities set forth under the statute. In response, Plaintiff contends that Defendant violated the TCPA by using an ATDS to call Plaintiff. The Court rejects Plaintiff’s argument for various reasons.  For one, without Plaintiff submitting his own statement of undisputed facts, the Court takes Defendant’s assertion as true that HCI is not an automated system, but rather, it is operated by human intervention, and the Court takes as true how the HCI system operates — with human intervention. Notwithstanding Defendant’s “Statement of Undisputed Facts,” Plaintiff, nonetheless argues in his briefing that HCI is in fact an ATDS, because he allegedly heard an initial period of silence when he answered Defendant’s calls. However, Plaintiff presents no evidence whatsoever to support his contention. As a procedural matter, Plaintiff has not submitted an affidavit or declaration attesting to his assertion; but, more importantly, he provides no evidence that the period of silence he heard somehow is probative in determining that Defendant’s HCI calling system was automated as defined under the TCPA. Discovery has ended, and Plaintiff had every opportunity to explore whether there is any evidence to support his position that the HCI system is an autodailer. Plaintiff has not done so. Based on the undisputed record before me, I find that the inclusion of human operation in the HCI system does not allow the system itself to “produce telephone numbers to be called, using a random or sequential number generator.” 47 U.S.C. § 227(a)(1). Nor does the HCI automatically dial those numbers. Instead, a clicker agent manually initiates a call at will and determines the frequency of the calls, not through any automatic means. See, e.g., Jenkins v. Gage, LLC, No. 14 -2791, 2016 U.S. Dist. LEXIS 106769, 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 human intervention was involved); Estrella v. LTD Fin. Servs., LP, No. 14-2624, 2015 U.S. Dist. LEXIS 148249, at *3 (M.D. Fla. Nov. 2, 2015) (finding summary judgment in favor of defendant appropriate 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. Servs., L.P., No. 14-1012, 2015 U.S. Dist. LEXIS 111751, at *1, 4 (M.D. Fla. Aug. 24, 2015) (finding the calling system is not an ATDS 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 v. Green Tree Servicing, LLC, 2015 U.S. Dist. LEXIS 58667, at *5 (finding that with human intervention, the call system would not be construed an autodialer); Modica v. Green Tree Servicing, LLC, 2015 U.S. Dist. LEXIS 55751, at *3 (N.D. Ill. Apr. 29, 2015) (finding that defendant’s call system that required the operator to click to initiate a call was not an autodialer); Gragg v. Orange Cab Co., 995 F. Supp. 2d 1189, 1193-94 (W.D. Wash. 2014) (finding the system at issue was not an ATDS when it required the agent to physically press “accept” to initiate a text message).  Next, Plaintiff cites dual cases, Davis v. Diversifield Consultants, Inc., 36 F. Supp. 3d 217 (D. Mass. 2014) and Echevvaria v. Diversified Consultants, No. 13-4980, 2014 U.S. Dist. LEXIS 32136 (S.D.N.Y. Feb. 28, 2014), for the proposition that the HCI system is an ATDS under the TCPA. Those cases, however, are inapposite. In Davis, the court dealt with a LiveVox DCI system that was mechanically different than the HCI system, here. Davis, 36 F.Supp. 3d at 221. According to the Davis Court, the DCI system had the capacity to store telephone numbers, as well as to generate random or sequential numbers, which functions fall within the definition of an ATDS under the TCPA. Id. at 225-26. These particular functions of the DCI system are noticeably absent from the HCI system. While both, i.e., DCI and HCI, systems are made by LiveVox, they fundamentally work in different ways that makes a substantial difference under the TCPA. Moreover, Echevvaria also held that a LiveVox system — that had similar functions as the DCI system — was an ATDS. Id. at *4. The court in that case found that the system there was “a predictive dialer that under the FCC’s rules interpreting the TCPA, is an ATDS covered by the TCPA.” Id. at *26. Accordingly, the systems in Davis and Echevvaria are different than the HCI system.  In fact, another district court, in Pozo v. Stellar Recovery Collection Agency, Inc., No. 15-929, 2016 U.S. Dist. LEXIS 146432 (M.D. Fla., Sep. 2, 2016), makes this exact distinction. In Pozo, plaintiff argued that defendant, in order to collect a debt, left a series of prerecorded messages on his answering machine. Id. at *8. The defendant was using HCI — the same system in this case — to make calls. The court held that HCI is not an ATDS, because clicker agents initiated all calls by clicking a dialogue box, and HCI did not allow any calls to be automatically made by the system. Id. at *11. Just as in this case, the plaintiff in Pozo attempted to rely on Davis and Echevvaria, but the Pozo court rejected plaintiff’s argument because, the court reasoned, “both Echevvaria and Davis found the LiveVox system used in those cases to be autodialers because they automatically called numbers from a list and automatically connected the calls with an available agent.” Id. at *13. See Smith v. Stellar Recovery, Inc., No. 15-1717, 2017 U.S. Dist. LEXIS 35658, at *19, *28 (E.D. Mich., Feb. 7, 2017) (finding that the HCI system is not an ATDS). Therefore, this Court finds Davis and Echevvaria to be distinguishable. Accordingly, because Defendant’s HCI system is not an autodialer for the purposes of TCPA, summary judgment is granted in favor of Defendant.