LiveVox HCI Is Still Not An ATDS
UPDATED (19Feb2017): In Smith v. Stellar Recovery (E.D. MI; 2:15-cv-11717), a Magistrate judge has arrived at a decision similar to the below. So we now have courts in the 6th and 11th saying the HCI is not an ATDS. Interesting trend developing.
Pozo v. Stellar Recovery
Dismissed without prejudice (private settlement) – Stellar allegedly made autodialed and prerecorded debt collection calls to plaintiff’s mobile after receiving his written cease and desist request. Stellar also allegedly failed to identify itself as a debt collector, repeatedly called debtors with intent to harass, as well as repeatedly called third parties looking for information about the debtor.
The district court granted Stellar’s motion for summary judgement on TCPA claims, ruling the human intervention component of the LiveVox HCI meant it did not constitute an ATDS since:
- Each call initiated from HCI must be initiated by a human ‘clicker agent’
- a ‘clicker agent’ monitors a real time dashboard which displays numbers to be called, along with ‘closer agents’ available to take the calls (a ‘closer agent’ is the one who actually speaks with the called party about the debt)
- A ‘clicker agent’ must click a button to launch a call particular telephone number
- A ‘closer agent’ must be available to take a call before HCI will allow a number to be dialed
- If a call is answered, the ‘clicker agent’ transfers the call to a ‘closer agent’
Additionally, with respect to the capacity question, the court found:
- HCI is separate from other dialing systems offered by LiveVox
- HCI uses its own unique software and hardware
- HCI does not use any statistical algorithm to minimize agent wait time between calls, nor does it incorporate any random or sequential number generator
- HCI does not possess any features that may be activated to enable automated calling
The fact that Stellar might be able to hypothetically hire a team of programmers to modify and rewrite large portions of HCI’s code to be an autodialer did not mean HCI had the ‘potential functionality’ to be an autodialer within the meaning of the TCPA and the 2015 FCC Order.
Plaintiff filed a motion for reconsideration on that ruling (Doc#65). The parties subsequently reached a private settlement, and the case was dismissed without prejudice (Doc#75).
[M.D. FL; 8:15-cv-00929]
jbho: have to admit, I was kinda hoping to see if the ATDS ruling would survive additional scrutiny. PACER lists an order on the Motion for Reconsideration (Doc#74), but there is no link to that order. Perhaps Steller wanted to put this to bed based on the FDCPA claims (i.e., do 40 calls over a two-month period constitute harassment?)
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