District Court (Ill.) Says Where a Caller Manually Dials from a Keypad, It’s Not an ATDS

In Gentleman v. Massachussetts Higher Educ. Assistance Corp., No. 16-cv-03096, 2019 U.S. Dist. LEXIS 135684 (N.D. Ill. Aug. 12, 2019), Judge Coleman granted summary judgment against a TCPA plaintiff because calls were not placed using an ATDS.

Delta contends that summary judgment in their favor is warranted because there is no evidence to establish that Delta used an automatic telephone dialing system (“ATDS”) to call Gentleman. In response, Gentleman states that he has already conceded that Delta is not liable for a direct violation of the Act. Gentleman maintains that Delta also is liable for TCPA violations committed by other parties [*33]  under a conspiracy or aiding and abetting theory. Again, both theories fail for the same reasons stated above. The Court, thus, denies Gentleman’s motion and considers whether summary judgment is appropriate for Delta. The TCPA prohibits calls to cellular phones using an ATDS. 47 U.S.C. § 227(b)(1)(A)(iii). The TCPA defines an ATDS as “equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). Gentleman alleges that Delta used an ATDS to place numerous calls to his cell phone from 2014 to 2015, despite his demand that all further communications from Delta should be made in writing. Gentleman provided the Court with no evidence to establish that Delta used an ATDS to call his cell phone during the relevant time period. Indeed, Gentleman contends that “discovery revealed that [Delta] did not place any phone calls within 3 years of the filing of the instant case.” (Dkt. 154 at 4.) On the other hand, Delta presents uncontroverted evidence that the calls Delta representatives made to Gentleman’s cell phone were placed using a Mitel 5212 desktop telephone. That desktop phone does not store a list of telephone [*34]  numbers and cannot generate random sequential numbers. For each of the calls made to Gentleman, a Delta representative picked up the phone and entered the digits of the telephone number on the phone’s keypad. Where a dialing system requires an agent to manually enter a phone number, the system requires human intervention. See Norman, 637 F. App’x at 216. The Court will not continue to address Gentleman’s argument that Delta is in cahoots with the other parties for the reasons previously stated. Thus, the Court denies Gentleman’s motion and grants Delta’s motion on Count VI.