District Court (Ill.) Says System Used to Manually Dial Calls Did Not Involve Use of ATDS under the TCPA

In Folkerts v. Seterus, Inc., No. 17 C 4171, 2019 U.S. Dist. LEXIS 42347 (N.D. Ill. Mar. 15, 2019), Judge Zee found that manually dialed calls did not involve the use of an ATDS under the TCPA.

Plaintiffs have failed to point to any evidence that either SynTelate or the manual phone has that capacity. Certainly, once the Avaya Proactive Contact System is employed, Defendant is able to make autodialed [*19]  calls. But that proves only that SynTelate and the manual phone have the “potential” capacity to function as an autodialer once other software is added. Liability on this basis is unavailable after ACA International. See 885 F.3d at 695-700. And even before that decision, courts in this district have declined to find that an ATDS was used, where an autodialer was merely an available piece of equipment in the defendant’s inventory but was not used to call the plaintiffs. See Messina v. Green Tree Servicing, LLC, 210 F. Supp. 3d 992, 1002 (N.D. Ill. 2016) (click-to-dial equipment that could be linked to autodialing equipment was not an ATDS); Modica v. Green Tree Servicing, LLC, No. 14 C 3308, 2015 U.S. Dist. LEXIS 55751, 2015 WL 1943222, at *3 (N.D. Ill. Apr. 29, 2015) (click-to-dial equipment was not an ATDS merely because a representative was also able to log into autodialing equipment through the same server); Dobbin v. Wells Fargo Auto Fin., Inc., No. 10 C 268, 2011 U.S. Dist. LEXIS 63856, 2011 WL 2446566, at *4 (N.D. Ill. June 14, 2011) (no ATDS was used where calls were made using a manual phone, even though it was linked to the same universal server as the defendant’s autodialing system). Plaintiffs argue, however, that this Court should not be fooled by the false sense of “human intervention” provided by SynTelate and the manual phone. Pls.’ Combined Reply & Resp. Def.’s Mot. Summ. J. at 6-9, ECF No. 70. They contend that the entire process Defendant uses for manually calling consumers—which involves representatives simply punching [*20]  in the numbers that SynTelate tells them to dial—should still be considered an ATDS. The issue, however, is not whether human intervention was involved, but rather whether any system Defendant used to call Plaintiffs had the present capacity to store, produce, and dial numbers using a random or sequential generator. The Court need only apply the statutory definitions as they have been recently interpreted. And under those definitions, the systems Defendant used to call Plaintiffs—a manual desktop telephone and SynTelate—do not qualify as ATDS’s on this record.