In Arora v. Transworld Systems, Inc., 2017 WL 3620742, at *1 (N.D.Ill., 2017), Judge Kokoras held that a point-and-click calling system was not an ATDS due to the human intervention involved. The facts were as follows:
In contrast, TSI claims that from August 25, 2014 through November 17, 2014, it placed a total of 13 calls to Arora. When calling Arora, TSI argues it used a web-based dialing program called Live Vox Human Call Initiator (“Human Call Initiator”). According to Jonathan Klein (“Klein”), Senior Compliance Manager for TSI, the Human Call Initiator is a human initiated and human controlled dialing system that requires a TSI agent to manually initiate every call. Each call initiated from a Human Call Initiator must be initiated by a human “clicker agent.” The clicker agent is responsible for confirming that the number to be called is the correct number, and after doing so, launching the call by physically clicking the number. When any TSI representative uses the Human Call Initiator system, he or she must click on a dialogue box to confirm the launching of a call to a particular telephone number. The call cannot be launched unless the clicker agent clicks on the dialogue box. The TSI clicker agent is also able to monitor a real-time dashboard that contains information about “closer agent” availability, the number of calls in progress, and related metrics. The closer agent is the agent designated by TSI to speak with the call recipient. When a call made by the Human Call Initiator is answered, it is transferred to the closer agent to engage the consumer in a conversation.
Citing other decisions on this technology, the District Court found no ATDS was “used” to place the call.
Arora argues that the Human Call Initiator is “vulnerable” to automation which could convert it to an autodialer. However, this argument was considered and rejected in both Stellar and Pozo. Additionally, Arora offers no specific evidence to support his hypothesis. Instead, like the plaintiff in Stellar, Arora cherry-picks the testimony of Kevin Stark (“Stark”), Director of Product Management at LiveVox Inc., to build the case that the Human Call Initiator is an ATDS. However, Stark’s testimony describing the Human Call Initiator makes clear that “none of the software or hardware used in the HCI system is used by any of the other calling systems, and that the HCI dialing system is unique in that it lacks the capacity to perform predictive dialing.” Stark further testified that the Human Call Initiator system is cloud-based, and “cannot store numbers… there is nothing that can be added, activated, deactivated to that system that would allow for number storage within the HCI dialing system.” Rather, Stark testified, the numbers are stored in a “campaign database” on a LiveVox server and “presented to the [clicker] agent” through a system component called an Automatic Call Distributor (“ACD”). Thus, every call made using the Human Call Initiator requires direct human intervention to initiate. Therefore, this Court, like the previous Courts who have considered this technology, finds that that Human Call Initiator system does not constitute an autodialer. Because all calls from TSI were made with human intervention, and not with an ATDS, Arora’s TCPA claim fails as a matter of law.