District Court (Ill.) Says No ATDS Used in Dialed Calls under TCPA

In Modica v. Green Tree Servicing, LLC., 2015 WL 1943222 (N.D. Ill. 2015), Judge Zagel granted summary judgment to a mortgage company on a TCPA claim because no ATDS was used.  The facts were as follows:

Defendant employed two methods to place outgoing calls to Plaintiffs from October 2011 to April 24, 2012:(1) Aspect Unified IP Version 6.6 Service Pack 2 (“Dialer”), a predictive dialing system which generates outbound dials at a rate of more than 100 calls per minute; and (2) a UCSe custom-built user interface software that accesses a customer’s phone number that is stored on a server, rather than a computer, and requires a human to click a “dial” option (“click method”). For an agent to make a telephone call through the Dialer, an agent must be logged on to the Dialer from the agent’s computer. If the Dialer detected that a live person had answered the call, the Dialer would then transfer the call to an available agent who was logged on to the Dialer. On the other hand, a live calling agent using the manual dialing method was required to initiate a call by telephone by locating the customer’s phone number, which is accessed by connecting to the server, and clicking the phone number on his computer. UCSe can interact with the Aspect Unified IP Version 6.6 Service Pack 2 in such a way that an agent could sign in to the predictive dialing system through UCSe and take part in a predictive dialer campaign.

The District Court found no dialer was used.

Plaintiffs argue that Defendant placed “over 100 phone calls to the Modicas’ cell phones” using equipment that qualified as an ATDS under the TCPA. It is undisputed that Defendant placed fifty-four phone calls to Katie’s cell phone, as well as numerous additional calls to Jeff, using the “click” method. It is also undisputed that Defendant’s predictive dialing system, i.e. Dialer, is an ATDS. The main issue here is whether the equipment used to make calls to Plaintiffs through the “click” method, which was connected to a server but not directly logged into the Dialer, also had the present capacity to produce, store, and automatically dial phone numbers such that it qualified as an ATDS under the TCPA.  Defendant relies on Dobbin v. Wells Fargo Auto. Fin., Inc. as central to its proposition that a manually made call does not have the “capacity” to be made from an auto-dialer just because the agent could theoretically sign on to an ATDS.2011 WL 2446566 (N.D. Ill June 14, 2011). As in the present case, the defendant in Dobbin had two distinct methods for making calls. First, the defendant could use a predictive dialing system called a Conversations System. The universal server–one component of the Conversation System–stored or produced phone numbers to be dialed. The server then passed the numbers to the digital communications processor, which dialed them. An available agent, sitting at a cubicle with a desk phone and a computer, who was logged into the universal server and connected to the Conversations Systems, could successfully complete the outbound calls using a desk phone. Alternatively, the defendant could make calls manually, wholly independent of the Conversation System, by dialing a phone number into a keypad of the desk phone and would not need to be logged into a universal server or even use a computer. There, the court granted summary judgment in favor of the defendant after determining that the calls were made manually, that the desk phones could be used independently of the ATDS, and that the plaintiffs had not presented any evidence that a connection to the Conversations System existed when the calls were made. As in Dobbin, Defendant had two methods for making calls. Defendant could make calls using either an ATDS “Dialer” or by the “click” method, which operated through the UCSe custom-built user interface software. Agents, such as Ferguson, were required to be connected to the server to access customer information. Upon accessing this information, an agent would then initiate a telephone call by clicking on a customer’s phone number, which would then be displayed on her computer. Because Defendant did not “store or produce telephone numbers to be called” on call center computers and phones, agents were not able to access customer information on their computers without logging into the server. Agents could, however, initiate calls without being logged into the Dialer.  When Ferguson initiated calls to Plaintiffs using the “click” method, she was connected to the server but was not logged in to the Dialer. Plaintiffs do not dispute that neither the server nor the UCSe software were connected to the Dialer. Nonetheless, Plaintiffs argue that even though Ferguson was not logged into the Dialer when she placed calls to Plaintiffs, she had the capacity to log into the Dialer from her computer. Consequently, Plaintiffs argue, Ferguson had the capacity to auto-dial customer’s numbers such that she was using an ATDS. However, as in Dobbin, Ferguson would not have had the capacity to make auto-dialed calls unless at least one additional step was taken: Ferguson would have to log into the Dialer. It is true that the additional step of logging into the Dialer is minimal–even smaller than in Dobbin. Nonetheless, Ferguson did not take that step and the equipment Ferguson used to call Plaintiffs was not capable of dialing numbers without human intervention. Plaintiff has not presented any evidence to establish a material question of fact that there was a connection to the Dialer or that the equipment Ferguson used had the present capacity of an ATDS. Summary judgment is granted in favor of Defendant as to Count I with respect to calls made to Katie and Jeff through the “click” method.