Copy/Paste Not Enough To Make An ATDS

“Without the capacity to dial on its own, telephone equipment simply cannot be an ATDS.”

Ung v. Universal Acceptance
Defendant’s MSJ granted – Universal allegedly made autodialed debt collection calls to plaintiff’s mobile. The calls were intended for a tenant living in one of plaintiff’s properties (providing a landlord’s contact info was a condition of Universal’s financing). Plaintiff claimed he did not have an account with Universal, never provided his number to Universal, and that calls continued despite his requests they stop.

After nearly 100 pages of briefs, the court determined that the DRIVE system used by Universal did not constitute an ATDS, since calls could only be made by:
(1) manually entering a telephone number on a handset telephone (hard phone); or
(2) copying and pasting (or manually typing) a number from DRIVE into a web application which would then dial the number (and connect the call to the employee’s hard phone).
Per the court: “(w)ithout the capacity to dial on its own, telephone equipment simply cannot be an ATDS.”

The record demonstrated plaintiff’s information was stored in DRIVE. That Universal used a ShoreTel ECC dialer for other calls was not relevant. No calls were made – or could be made – to numbers stored in DRIVE absent the human intervention mentioned above. Even if the ShoreTel ECC could be configured to be an ATDS (i.e., had potential capacity), the hard phones and web application used by Universal could not be.
[D. MN; 0:15-cv-00127]
jbho: good example of a process that meets the ‘manual dialing’ threshold.

Note that the court previously declined to dismiss, stating the question of whether the calls were autodialed or manually dialed was a merits issue, not a jurisdictional issue such as standing. Perhaps good that this case did move on to the next phase, as the dicta here helps provide clarity around the boundaries of what constitutes an ATDS. 

Also of interest, the court addressed plaintiff’s contention that the FCC declined to adopt a ‘human intervention’ test in its 2015 rulemaking, finding that although the FCC rejected bright line rules in ATDS determination, the FCC did say human intervention remained a key factor in any case-by-case analysis.

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