TCPA Litigation: Is Click-to-Dial a Violation?
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The Telephone Consumer Protection Act (“TCPA”) contains strict provisions to ensure that businesses are not abusing that technology and harming consumers with harassing telemarketing calls and texts. The TCPA is one of the most heavily litigate statutes, often levied in the form a class-action complaints with potential exposure to millions of dollars in liability. Litigation often includes the key issue as to whether the technology being employed is deemed an Automatic Telephone Dialing System (“ATDS”). This article addresses whether assisted dialing programs (i.e. “click-to-dial”) constitute a violation of the TCPA through use of an ATDS.
What is an ATDS?
TCPA prohibits a caller from making “any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice” 47 U.S.C. 227(b)(1)(A). Under the statute, an ATDS is defined 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.”
The basic function and defining characteristic of an ATDS is “the capacity to dial numbers without human intervention.” In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14091 ¶ 132 (2003 FCC Ruling); Glasser v. Hilton Grand Vacations Co., LLC., 341 F. Supp. 3d 1305, 1308 (M.D. Fla. 2018), aff’d sub nom, Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301 (11th Cir. 2020). But, does click-to-dial constitute enough human intervention such that the program is not considered an ATDS?
What is assisted dialing, and does it constitute an ATDS?
Certain click software programs have the ability to store telephone numbers, and which require a human to first locate a customer’s stored phone number, and then click the telephone number to connect to the customer. This click option requires human intervention through an additional step to sign in to the dialer. Such software has been the subject of TCPA litigation, where a plaintiff has argued that such software constitutes use of an ATDS.
Click-to-dial was the subject of litigation in the Glasser case. “Before a call could be made, a customer’s record, including, the customer’s cell number, appeared on the agent’s computer screen, and the agent then clicked on the “Make Call” button on the screen to initiate the call.” Glasser, 341 F. Supp. 3d at 1307. The court found that “[t]he undisputed facts demonstrate that human intervention was required before a cell number could be dialed by Defendant’s system. Accordingly, the system is not, by definition, an ATDS under the TCPA.” Id. Ultimately, the defendant argued the relevant aspects of their system was “(1)…no call can ever be placed without human intervention for each and every call;” (2) “the system is not capable of dialing from a list of numbers;” and (3) “the system does not produce or store numbers that have been randomly or sequentially generated and didn’t dial them.” Id.
Another Florida court applied a similar standard and found “the appropriate standard to determine whether the EZ-texting program is an automatic telephone dialing system is whether the program (1) lacks the capacity to randomly or sequentially generate phone numbers, or alternatively, (2) lacks the ability to send messages without human intervention.” Ramos v. Hopele of Fort Lauderdale, LLC, 334 F. Supp. 3d 1262, 1265 (S.D. Fla. 2018).
Under that standard, where the Defendant “wrote the message, programmed the date and time of delivery, and the cell phones scheduled to receive the message. . . then hit send. . . . this amount of human intervention is sufficient to negate the EZ-texting program as an automatic telephone dialing system.” Id.
Courts have regularly analyzed the level of input that is required to determine if “human intervention” prevents an ATDS classification. Luna v. Shac, LLC, 122 F. Supp. 3d 936, 941 (N.D. Cal. 2015). (“Plaintiff’s argument fails. . . the court finds that human intervention was involved in several stages of the process . . . and was not limited to the act of uploading the telephone number to the [Defendants] database . . . human intervention was involved in drafting the message, determining the timing of the message, and clicking “send” on the website to transmit the message to Plaintiff.”)
In some cases, “even if the Court were to find that the inability to randomly or sequentially generate telephone numbers did not disqualify the [Defendant’s] Platform from being an ATDS, its inability to dial numbers without human intervention would.” Herrick v. GoDaddy.com LLC, 312 F. Supp. 3d 792, 801 (D. Ariz. 2018) (the system required “manually typing in the desired content and selecting a time and date,” and “a ‘captcha.’”).
Conversely, Courts have found that “whether human intervention is required at the point in time at which [Plaintiff’s] number [was] dialed” is relevant and that “having operators standing by, to use an old phrase, to take a connected call is not ‘human intervention’ in the dialer’s initiation of calls.” Ammons v. Ally Fin., Inc., 326 F. Supp. 3d 578, 588 (M.D. Tenn. 2018) (quoting Strauss v. CBE Grp., Inc., 173 F.Supp.3d 1302, 1309 (S.D. Fla. 2016)).
In Moore v. Dish Network, L.L.C., 57 F.Supp.3d 639 (N.D. W. Va. 2014), the court found the subject system to be an ATDS, based on the fact that the only human involvement was typing a list of numbers into software, which then automatically transferred them to dialer hardware, which in turn automatically made calls. Further, some courts found the automated dialing system at issue uploaded lists of numbers from individual users and required no human intervention by defendant. See Sterk v. Path, Inc., 46 F.Supp.3d 813 (N.D. Ill. 2014), and Griffith v. Consumer Portfolio Serv., Inc., 838 F.Supp.2d 723 (N.D. Ill. 2011).
As technology advances, courts will be continually faced with assessing the programs and software used to determine whether they are classified as an ATDS. To avoid TCPA pitfalls, it is critical that all of your business operations are in compliance with the TCPA and the various “mini-TCPA’s” of each of the states in which you operate.