In Ung v. Universal Acceptance Corporation, 2017 WL 1288378, at *1 (D.Minn., 2017), Judge Kyle granted summary judgment to an automobile finance company who manually dialed calls, “refusing to go down the rabbit hole”. The Court explained:
But against this simple backdrop, the parties have attempted to drag the Court down a rabbit hole, raising complex arguments about the intricacies and capabilities of the telephone system Universal used to call Ung.1 This, according to the parties, is because the TCPA only prohibits calls made using an “automatic telephone dialing system [ATDS] … to any telephone number assigned to a … cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii) (emphasis added). The statute 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.” § 227(a)(1). The parties’ entire dispute, therefore, has devolved into a question about the phone system on which Universal called Ung’s cell phone: Ung contends that it qualifies as an ATDS, while Universal contends it does not. The parties have submitted nearly 100 pages of briefs – and a small mountain of documents – addressing the intricacies and capabilities of Universal’s telephone system, and having pored over those submissions, the Court concludes that no genuine issue of fact exists, as set forth below.
The District Court found no TCPA liability for manually dialed calls despite the existence of equipment that had the “capacity” to autodial calls even if not presently being used for that purpose.
The FCC’s understanding of this “basic function” of an ATDS proves critical in this case, because there is no genuine issue here that Universal’s calls to Ung – and every other landlord whose contact information was provided by a CarHop customer – required human intervention. . . In other words, a live human being was required to place calls to landlords such as Ung. This is not, to parrot the FCC, a system providing a way to “dial thousands of numbers in a short period of time.” In re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. at 7975. Accordingly, Ung was not called using an ATDS. . . .Ung responds that human intervention is irrelevant to whether Universal’s telephone equipment qualifies as an ATDS. In support, he notes that in a July 2015 Order, the FCC declined to “adopt a ‘human intervention’ test” for whether telephony qualifies as an ATDS. In re Rules & Regulations Implementing Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. at 7976. But contrary to Ung’s assertion, this does not render human intervention irrelevant to the inquiry. Rather, the FCC’s 2015 Order simply made clear that there are no bright-line rules for determining when calling equipment is an ATDS, and human intervention remains a factor – a key one – to be considered in the analysis. This is precisely why the 2015 Order also provides that “[h]ow the human intervention element applies to a particular piece of equipment is specific to each individual piece of equipment, based on how the equipment functions and depends on human intervention, and is therefore a case-by-case determination.” Id. at 7975. If Ung were correct that human intervention plays no part in the discussion, the FCC would not have mentioned it as part of a “case-by-case determination” of whether equipment qualifies as an ATDS. Nor would it have reiterated in the 2015 Order its “long held” belief that “the basic functions of an autodialer are to dial numbers without human intervention and to dial thousands of numbers in a short period of time.” Id. (internal quotation marks omitted). While perhaps not dispositive on its own, human intervention is a critical component of the inquiry. Ung next argues that even if human intervention bears on the inquiry, summary judgment is still inappropriate because Universal has the facts wrong. He contends that his contact information was stored in the DRIVE system in a reference field and not a landlord field, citing certain of Universal’s discovery responses. (Mem. in Opp’n at 18.) And building on this argument, he contends that references were called using Universal’s “ShoreTel Enterprise Contact Center” telephone system, referred to by the parties as the “ECC,” which he argues at length is an ATDS. But there are several problems with these contentions. . . Ung also makes much of the fact that in its 2015 Order, the FCC recognized that a telephone system may have the “capacity” to autodial calls even if not presently being used for that purpose. (Mem. in Opp’n at 6-7 (citing authority for the proposition that the “capacity of an autodialer is not limited to its current configuration but also includes its potential functionalities”).) Yet, by this logic, almost any telephone equipment could be considered an ATDS. It does not take a creative mind to envision a 1960s-era rotary phone attached to modern computer equipment, rendering the rotary phone capable of dialing telephone numbers, but no one would suggest a rotary phone is an ATDS because of this “potential functionality.” Indeed, the FCC cited this very example in its 2015 Order when cautioning against stretching the definition of an ATDS too far.5 Regardless, here the record discloses that while the ECC can be configured to autodial, the hard phones and the web application simply cannot be. (Streiff Decl. ¶¶ 14-16 (noting that the web application and the hard phones are “separate and independent” from the ECC and “require human intervention to initiate a phone call”).) And it is not genuinely disputed that only the hard phones and web application are used to call landlords. Given the need to manually dial a call and the inability to place large numbers of calls in a short period of time, the Court simply does not believe there is a genuine issue that the telephone system used to call Ung qualifies as an ATDS.
Spencer Ung, Plaintiff, v. Universal Acceptance Corporation, Defendant., 2017 WL 1288378, at *3–4 (D.Minn., 2017)