7th Circuit Says Manually Dialed Calls Exempt from the TCPA

In Norman v. AllianceOne Receivables Management, Inc., 2015 WL 9286778, at *1 (7th Cir. 2015) (unpublished), the Court of Appeals for the Seventh Circuit affirmed summary judgment granted on the basis that calls were placed manually and, therefore, were exempt from the TCPA.

The district court granted summary judgment after AllianceOne produced evidence showing that its calls to Norman were dialed manually, which the Act permits. Because that evidence is undisputed, we affirm.We construe the record evidence in favor of Norman, the non-movant, and begin with his evidence. Norman cites to AllianceOne’s website, which advertises that its capabilities “include” autodialers. He also swears in a declaration that when he answered calls from AllianceOne, he heard a “pause,” “clicking,” and “dead air.” He referred the court to a guide from the Federal Communication Commission, which explains that autodialers “often” result in “hang ups” and “dead air.” AllianceOne submitted a declaration from the company’s Vice President of Business Analytics and a log of the calls to Norman’s phone to show that he was not autodialed. The log listed a code (the word “MAN”) next to Norman’s cell phone number. The Vice President explained that the code means that calls to Norman were dialed manually. He explained that the system that AllianceOne uses to call manually cell phones like Norman’s lacks the capacity to make automated calls; it requires a live representative to enter all phone numbers by hand. The Vice President also reviewed the company’s recordings of the calls to Norman’s phone. Five of the calls to Norman went to his voicemail and a sixth call was unanswered because the connection was lost. The company had no record of a seventh call.  The district court granted summary judgment for AllianceOne. First it considered and rejected Norman’s objection to the Vice President’s declaration. Norman had argued that because the executive did not place the calls to Norman himself, he lacked personal knowledge of those calls. But the call records and the Vice President’s declaration, the court explained, were admissible evidence because the Vice President was the “custodian of the records” and “familiar with the company’s recordkeeping practices.” Therefore, even if the Vice President did not make the calls to Norman’s cell phone personally, he could swear to the company’s business records and practices. By contrast Norman’s evidence, the court continued, was insufficient to create a fact dispute. AllianceOne’s website did not describe the practice for the calls to Norman. And, the court also ruled, the FCC’s guide was inadmissible hearsay; furthermore, even if admissible, it did not refute AllianceOne’s evidence that no call to Norman was autodialed.