The District of Nevada, relying on the ACA International v. FCC decision, granted summary judgment in favor of The CBE Group, Inc. (“CBE”) on a TCPA claim. In Marshall v. CBE, the court found that CBE’s Manual Clicker Application (“MCA”) used by CBE is not an automatic telephone dialing system (“ATDS”).
The decision (read it here) also discusses an FDCPA claim and procedural issues related to an expert opinion, but this article focuses solely on the TCPA facet of the case.
Factual and Procedural Background
Plaintiff fell behind on her DirecTV bill, causing DirecTV to place the account with CBE for collection. CBE, through its skip-tracing vendor, obtained plaintiff’s cell phone number and began calling this number in its attempt to collect the debt.
To place these calls, CBE used the Manual Clicker Application (“MCA”) created by CBE, which works in conjunction with LiveVox. Through MCA, a CBE agent places a call by clicking a bull’s-eye on the computer screen, which causes a call to pass through LiveVox’s cloud, and connects a CBE agent with the person to whom the call is placed.
Plaintiff filed a lawsuit against CBE alleging, among other things, that CBE violated the TCPA by using an ATDS to place calls to her cell phone without consent. The parties filed summary judgment motions. On the TCPA issue, the court granted summary judgment for CBE.
The court, pursuant to the D.C. Circuit Court of Appeals’ decision in ACA International v. FCC, stated that it would apply the strict definition of an ATDS. Reviewing the facts with this in mind, the court found that the dialing system used by CBE is not an ATDS, thus finding that there is no TCPA liability for CBE.
The court found that the MCA software used by CBE quantified as human intervention per the overwhelming case law authority on the issue, specifically since the agent had to physically point and click the bull’s-eye in order to initiate the call. Plaintiff failed to present sufficient evidence to show that the MCA system can place calls on its own without human intervention.
The court discounted plaintiff’s expert witness’s opinion. One big issue pointed out by the court was that plaintiff’s expert witness did not actually view the system used by CBE. Instead, the expert used analysis of the technology found in court decisions. This, the court found, was insufficient for the expert to determine whether the specific system used by CBE was or was not an ATDS.
Similarly, the court dismissed plaintiff’s argument that somehow it is LiveVox, and not CBE, that placed the call. Plaintiff’s expert witness failed to persuade the court that that CBE’s call tracking report somehow shows that LiveVox places calls. The court shut this argument down stating that "there is no evidence, or legal authority, suggesting that LiveVox’s ability to track calling information means that the system has the capacity to store or produce numbers to be called using a random or sequential number generator.”
Ultimately, the court found that the undisputed facts showed that CBE did not use an ATDS to place calls to plaintiff’s cell phone.
The ACA v. FCC decision is starting to bear fruit. By striking down the 2015 FCC Order, the D.C. Circuit Court of Appeals provided clarity on what constitutes an ATDS. Prior to this decision, the debt collection industry, which still heavily relies on placing calls to consumers, erred on the side of caution in order to avoid tripping TCPA liability, which is uncapped.
In the instant decision, it is apparent that the ACA v. FCC decision simplified the analysis for the court of what is and is not an ATDS. Rather than having to wade through the waters of the definition of “capacity,” the court was able to reach a well-reasoned, clear conclusion that the phone system used by CBE was not an ATDS.