District Court (Cal.) Says that 9th Cir.’s Marks Decision Does Not Mean That the TCPA Encompasses Manually Dialed Calls

In Ammons v. Diversified Adjustment Serv., No. 2:18-cv-06489-ODW (MAAx), 2019 U.S. Dist. LEXIS 175842, at *12-14 (C.D. Cal. Oct. 9, 2019) , Judge Wright held that LiveVox’ manual dial requirement disqualified it from being an ATDS, and nothing in Marks changes that conclusion.

The parties agree that all calls DAS placed to Ammons’s 3436 Cell Phone used LiveVox HCI. (DSUF 5.) DAS contends that LiveVox HCI is not an ATDS under the TCPA because each call must be initiated by manual human intervention. (Mot. 13.) DAS submits evidence supporting that, while LiveVox has several cloud-based dialing platforms, the LiveVox HCI system was purposefully designed to require a human component to initiate each call through that platform, and to be incapable of automated calling. (Decl. of Laurence Siegel in Supp. of Mot. (“Siegel Decl.”) ¶ 2, ECF No. 38-5.) The human component, a “clicker agent,” must physically click a dialog box to launch each individual call. (Siegel Decl. ¶¶ 8, 19.) The clicker agent verifies that a “closer agent” is available to receive the call before launching it; LiveVox HCI does not use any predictive algorithms in launching the calls. (Siegel Decl. ¶¶ 9-11.) DAS’s evidence shows that LiveVox HCI has no capacity to store numbers to be called, to produce numbers to be called using a random or sequential number generator, or to dial numbers automatically. As such, LiveVox HCI does not qualify as an ATDS. Ammons contends that LiveVox HCI is an ATDS because LiveVox can store a list of numbers to be called. (Opp’n 6.) She relies on the deposition of DAS’s corporate representative, who agreed it would be fair to say a “campaign,” “sort of like a list,” “gets sent up to LiveVox.” (Opp’n 6.) However, at the same time, Ammons notes, “LiveVox then dials those numbers on its own when given the go-ahead to do so.” (Opp’n 6 (emphasis added)). Thus, Ammons acknowledges that, even if LiveVox stores numbers, LiveVox HCI still requires human intervention to launch calls to them. Ammons also contends that, because the LiveVox HCI system was “[t]ransparently designed to insert an unnecessary person into the process” for the purpose of avoiding TCPA liability, the clicker agent’s role should not disqualify LiveVox HCI as an ATDS. (Opp’n 8.) Yet to be an ATDS, a system must be capable of automatic dialing, which LiveVox HCI is not. (See Siegel Decl. ¶¶ 12-13.) As one court to consider the system noted, “[a]lthough LiveVox HCI’s level of human intervention may seem minimal, every court to examine this issue has held that the clicker agent’s role prevents the system from qualifying as an ATDS under the statute.” Collins v. Nat’l Student Loan Program, 360 F. Supp. 3d 268, 273 (D.N.J. 2018) (collecting cases); see also Marshall v. CBE Grp., No. 2:16-CV-02406-GMN (NJK), 2018 WL 1567852, at *7 (D. Nev. Mar. 30, 2018) (“the overwhelming weight of authority applying this element hold that ‘point-and-click’ dialing systems, paired with a cloud-based pass-through services [sic], do not constitute an ATDS as a matter of law in light of the clicker agent’s human intervention.”) (collecting cases).  True, the Ninth Circuit in Marks envisioned that some level of human interaction with a system may still qualify as an ATDS. 904 F.3d at 1053 (holding that an ATDS must have the capacity “to dial such numbers automatically (even if the system must be turned on or triggered by a person)”). However, LiveVox HCI goes far beyond merely triggering a system to run automatically. It requires human interaction to initiate each call. The Court agrees with other courts to consider the LiveVox HCI system and, applying Marks, finds that the clicker agent’s role precludes LiveVox HCI from qualifying as an ATDS. Accordingly, Ammons’s TCPA claim fails as a matter of law.