In Wilcox v. Green Tree Servicing, LLC, 2015 WL 2092671 (M.D. Fla. 2015), Judge Bucklew denied a TCPA Plaintiff’s summary judgment motion on the basis that Plaintiff had not adequately proved that Defendant used an ATDS.
Defendant argues that the evidence shows that its agents manually dialed Plaintiff’s cell phone for all of the calls at issue. In support of this contention, Defendant points to the affidavit of its Assistant Vice President of Technical Support and Operations, Robert Tolley. (Doc. No. 22–6). Tolley has reviewed the calls made to Plaintiff’s cell phone and can determine, based on the their “Call Type,” how each call was made. (Doc. No. 22–6). According to Tolley, there are three ways that Defendant can make a call. The first way is for Defendant’s agent to manually dial the 10–digit phone number on the handset. (Doc. No. 22–6, p. 8, ¶ 5). Calls made using this manual method are listed as “Local” in the “Call Type” column of the call report Tolley submitted to the Court. (Doc. No. 22–6, p. 9, ¶ 9; Doc. No. 22–6, p. 19). The second way that Defendant’s agents make calls is to use the Genesys CTI system. (Doc. No. 22–6, p. 8, ¶ 5). Tolley describes this call method as follows: “The second [way] is to use the Genesys CTI system to select a number to be called from a list. If the agent uses the second method, the Genesys server instructs the PBX [telephone] system … to place the telephone call. Upon connection, the call is delivered to the agent at the agent identification number specified for that phone…. [I]t is common for there to be a short delay between connection to [the called party’s] telephone number and the delivery of the call to the agent.” (Doc. No. 22–6, p. 8, ¶ 5). Calls made using the Genesys CTI system are listed as “National” in the “Call Type” column of the call report Tolley submitted to the Court. (Doc. No. 22–6, p. 9, ¶ 9; Doc. No. 22–6, p. 19). The third way that Defendant’s agents make calls is to use an ATDS, which is operated through the Aspect Dialer system. (Doc. No. 22–6, p. 8). Calls made using the ATDS will show up on the call report with a specific Trunk Access Code for the Tempe, Arizona or St. Paul, Minnesota dialer systems. (Doc. No. 22–6, p. 9, ¶ 8). Tolley explains that none of the calls at issue were made from the Aspect Dialer System, because the call report does not list one of the dialer system Trunk Access Codes for any of the calls. (Doc. No. 22–6, p. 9, ¶ 8; Doc. No. 22–6, p. 19, 21). Based on a review of Tolley’s affidavit and the call report, the evidence shows that five of the calls at issue were made manually, because the “Call Type” is listed as “Local.” These five calls were made on May 22, 2012, May 31, 2012, June 5, 2012, June 8, 2012, and June 25, 2012. Because the evidence shows that these five calls were made by the agent manually dialing Plaintiff’s cell phone number, Plaintiff’s TCPA claim based on the use of an ATDS for these calls fails and summary judgment is warranted. Based on a review of Tolley’s affidavit and the call report, the evidence shows that the other call at issue, the one made on November 9, 2012, was made using the Genesys CTI system, because the “Call Type” is listed as “National.” Plaintiff argues that the Genesys CTI system is an ATDS; specifically, a predictive dialer. Therefore, Plaintiff contends that this call violates the TCPA. As previously stated, the key feature of an ATDS is the capacity to dial numbers without human intervention. See Holcombe v. Credit Protection Association, LP, 44 F.Supp.3d 1311, 1315 (M.D.Ga.2014); Lardner v. Diversified Consultants Inc., 17 F.Supp.3d 1215, 1223 (S.D.Fla.2014) (stating that the equipment at issue was an ATDS “because it automatically dials telephone numbers from a preprogrammed list”); Buslepp v. Improv Miami, Inc., 2012 WL 4932692, at *2 (S.D.Fla. Oct. 16, 2012); Hicks v. Client Services, Inc., 2009 WL 2365637, at *5 (S.D. Fla. June 9, 2009); Legg v. Voice Media Group, Inc., 20 F.Supp.3d 1370, 1374 (S.D.Fla.2014). The evidence before the Court is somewhat vague regarding how the phone calls are initiated under Defendant’s second calling method using the Genesys system; it is unclear whether the agent selects the number to be called (and then the Genesys system responds by dialing the number that the agent selects) or if the Genesys systems selects the number to be called. 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 ATDS. See Gragg v. Orange Cab Co., Inc., 995 F.Supp.2d 1189,1194 (W.D.Wash.2014) (concluding that the system at issue required human intervention in order to send the text message, because a human physically pressing “accept” was required before the message could be sent). However, because the evidence on this issue is unclear, the Court denies summary judgment on Plaintiff’s claim that Defendant violated the TCPA by calling her cell phone using an ATDS on November 9, 2012.