CEB Prac. Guide § 2B.05: "Call" Defined -- Manual Calls

In Ammons v. Diversified Adjustment Serv., No. 2:18-cv-06489-ODW (MAAx), 2019 U.S. Dist. LEXIS 175842, at *12-14 (C.D. Cal. Oct. 9, 2019) , Judge Wright held that LiveVox' manual dial requirement disqualified it from being an ATDS, and nothing in Marks changes that conclusion. The parties agree that all calls DAS placed to Ammons's 3436 Cell Phone used LiveVox HCI. (DSUF… Read More

In Folkerts v. Seterus, Inc., No. 17 C 4171, 2019 U.S. Dist. LEXIS 42347 (N.D. Ill. Mar. 15, 2019), Judge Zee found that manually dialed calls did not involve the use of an ATDS under the TCPA. Plaintiffs have failed to point to any evidence that either SynTelate or the manual phone has that capacity. Certainly, once the Avaya Proactive… Read More

In Chyba v. Bayview Loan Servicing, LLC, 2016 WL 5405557, at *3–4 (S.D.Cal., 2016), Judge Benitez held that mere ownership of an ATDS and mere allegations of "pauses" was insufficient to create a question of fact on MSJ, when Caller established that calls were manually dialed. Plaintiff submits an affidavit, a handwritten call log,2 and photographs of a cell phone… Read More

In Ellis v. Phillips and Cohen Associates, Ltd., 2016 WL 3566981, at *3-5 (N.D.Cal., 2016), Judge Davila found a triable issue of material fact as to whether a debt incurred by Plaintiff's corporation, for which she denied responsibility, was a "commercial" debt under the FDCPA. As this court previously observed when addressing Defendant's motion to dismiss, a “consumer debt” qualifying… Read More

In Ananthapadmanabhan v. BSI Financial Services, Inc., 2015 WL 8780579, at *4 (N.D.Ill. 2015), Judge Leinenweber held that a TCPA Plaintiff must plead more than formulaic recitation of the TCPA in order to prove the “use” of an ATDS. The Court agrees that Plaintiffs' Complaint is insufficient. Use of an ATDS and the pre-recorded nature of the messages are not… Read More

In Norman v. AllianceOne Receivables Management, Inc., 2015 WL 9286778, at *1 (7th Cir. 2015) (unpublished), the Court of Appeals for the Seventh Circuit affirmed summary judgment granted on the basis that calls were placed manually and, therefore, were exempt from the TCPA. The district court granted summary judgment after AllianceOne produced evidence showing that its calls to Norman were dialed… Read More

In Estrella v. LTD Financial Services,  2015 WL 6742062, at *1-3 (M.D.Fla., 2015), Judge Whittemore granted summary judgment to a TCPA defendant who manually dialed calls by a "point-and-click" method. To succeed on his TCPA claim, Plaintiff must establish that Defendant placed calls to his cellular phone using an ATDS or artificial or prerecorded voice. The TCPA prohibits the use of… Read More

In Gaza v. LTD Financial Services, L.P., 2015 WL 5009741, at *4 (M.D.Fla.,2015), Judge Moody granted summary judgment to a TCPA defendant whose calls were only dialed manually. With respect to the ATDS definition, the FCC, in its July 10, 2015 Declaratory Ruling and Order noted: "We reaffirm our previous statements that dialing equipment generally has the capacity to store… Read More

The FCC's Omnibus Ruling, along with the comments of Commissioners Wheeler, Clyburn, Rosenworcel, Pai, and O'Rielly can be found here. We will be evaluating the Ruling, and Commissioners' comments.   For questions regarding the Ruling and its impacts, please contact the group leaders of Severson & Werson's TCPA team, Eric Troutman (ejt@severson.com) or Scott Hyman (sjh@severson.com). Read More

In Hilgenberg v. Elggren & Peterson, 2015 WL 4077765,  (D.Utah,2015), Judge Shelby found that a debt collector violated the FDCPA for failing to give meaningful disclosure in its voicemail messages, but did not violate the TCPA because the calls were manually dialed.  As to the former, Judge Shelby found that the debt collector failed to give the "tripartite" disclosure:  name, company,… Read More

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… Read More

In Anderson v. Security Finance of Idaho, LLC, 2015 WL 1478440 (D. Idaho 2015), Judge Winmill found that manually dialed calls are exempt from the TCPA. The TCPA provides, in pertinent part, that “It shall be unlawful for any person within the United States ... to make any call (other than a call made for emergency purposes or made with… Read More

In Jackson v. Cavalry Portfolio Services, LLC, WL 517490 (E.D.Mo. 2014), Judge Jackson granted summary judgment to a TCPA defendant who submitted an affidavit of its paralegal stating that the calls were manually dialed. The TCPA prohibits persons from (1) making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party)”… Read More

In Bates v. Dollar Loan Center, LLC, 2014 WL 60472 (D.Nev. 2014), Judge Dawson denied a TCPA defendant’s Motion for Summary Judgment on the issue of whether an ATDS was used.  The facts were as follows: This is a class action complaint. Defendants are “all involved in the business of high-interest, short-term loans (i.e. ‘payday loans').” (# 1; 2:24–25). Fur-ther,… Read More

In Boyd v. General Revenue Corp., 2013 WL 866944 (M.D.Tenn. 2013), Judge Haynes held that the TCPA does not regulate manually dialed calls to cellular telephones. Plaintiff's TCPA claims are that: (1) Defendants willfully and knowingly violated the TCPA by placing forty-two (42) telephone calls using an auto-dialer to Plaintiff's cellular telephone, as Plaintiff is registered with the Federal Do… Read More

In Mudgett v. Navy Federal Credit Union, 2012 WL 870758 (E.D.Wis. 2012), Judge Edelman held that manually placing a call from a telephone connected to an ATDS did not trigger the TCPA. Mudgett's second argument is based on language of the TCPA that defines “automatic telephone dialing system” as equipment that has the capacity to autodial. See 47 U.S.C. §… Read More

In Dobbin v. Wells Fargo Auto Finance, Inc., 2011 WL 2446566 (N.D.Ill. 2011), Judge Kennelly held that the availability, but not use, of an autodialer was fatal to Plaintiff's TCPA claim. Plaintiffs concede, however, that Wells Fargo's agents' desk phones can also be used independently of its predictive dialing technology—that is, while a call center agent is not logged into the universal… Read More