Human Intervention Means Program Not ATDS, Illinois Court Rules

TCPA Connect

Human intervention to make calls on behalf of the defendant ruled out the use of an automatic telephone dialing system (ATDS), an Illinois federal court judge has ruled, granting summary judgment in favor of the defendant.

Ashok Arora claimed Transworld Systems Inc. (TSI) called Arora’s cellphone with an ATDS and without prior express consent on a dozen different occasions. He filed suit alleging violations of the Telephone Consumer Protection Act (TCPA) in Illinois federal court.

TSI responded with a motion for summary judgment. According to the company’s records, TSI placed a total of 13 calls to Arora using a web-based dialing program called Live Vox Human Call Initiator. TSI stated that the program is a human-initiated and human-controlled dialing system.

Specifically, each call initiated from Human Call Initiator must be launched by a human “clicker agent” who is responsible for confirming that the number to be dialed is the correct number and then must physically click the number in order for it to be called. The call cannot be made without the clicker agent, who also monitors a real-time dashboard for information about “closer agent” availability, the number of calls in progress and other metrics.

Based on Human Call Initiator’s requirement of human intervention, the plaintiff failed to allege the defendant used an ATDS, necessitating dismissal of the suit, TSI argued.

U.S. District Judge Charles P. Kocoras agreed, noting that Human Call Initiator was specifically designed to comply with the requirements of the TCPA.

Arora claimed that TSI did not use Human Call Initiator to call him, but offered no evidence to support his allegation, leaving the court no choice but to grant the defendant’s motion for summary judgment.

As a backup argument, Arora contended that Human Call Initiator was an ATDS. Relying on his background as a software developer and his own research, he argued the program has the “potential capability” to be an ATDS.

However, federal courts in Florida and Michigan have considered and rejected this position, Judge Kocoras said, after thoroughly analyzing the Human Call Initiator system.

“Instead of challenging these rulings, Arora argues that the Human Call Initiator is ‘vulnerable’ to automation which could convert it to an autodialer,” the court said. “However, this argument was considered and rejected in both [the Florida and Michigan cases]. Additionally, Arora offers no specific evidence to support his hypothesis.”

Every call made using Human Call Initiator requires direct human intervention to initiate, Judge Kocoras wrote. “Therefore, this Court, like the previous Courts who have considered this technology, finds that the Human Call Initiator system does not constitute an autodialer. Because all calls from TSI were made with human intervention, and not with an ATDS, Arora’s TCPA claim fails as a matter of law.”

To read the memorandum opinion in Arora v. Transworld Systems, Inc., click here

Why it matters: This decision, out of a typically plaintiff-friendly jurisdiction, and one with a very high amount of TCPA litigation, adds to a growing body of law stating that a click-to-call dialing system using human intervention is not an ATDS for purposes of the TCPA, joining courts in Florida and Michigan. While uncertainty abounds on the question of what is an ATDS after the FCC’s July 2015 ruling, this decision can help provide some measure of comfort to companies using click-to-call dialing systems while we await the D.C. Circuit’s ruling.    

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