The post-ACA Int’l rulings on ATDS functionality continue to pile up at a clip of about one new ruling every 1-2 weeks. The newest in the series is last week’s ruling out of the Northern District of Georgia – Maddox v. Cbe Group, No. 1:17-CV-1909-SCJ, 2018 U.S. Dist. LEXIS 88568 (N.D. Ga. May 22, 2018) (“Maddox”). There, the court granted Defendant’s summary judgment motion on the basis the LiveVox Manual Clicker Application (“MCA”) used by Defendant was not an ATDS. But it did so in reliance on the 2003 FCC predictive dialer ruling, and based on its finding that making calls with the MCA required “human intervention”.
In reaching this conclusion, the court started by examining ATDS precedent and found a few things. The court recognized that under the TCPA “the essential feature of an ATDS is that it uses a random or sequential number generator,” but that the FCC made “short-shrift” of that requirement (i.e. ignored it) in its 2003 ruling when it held that a system can qualify as an ATDS if it “relies on a given set of phone numbers.”
The court then turned its attention to ACA Int’l, finding first that the opinion is binding on the court. But things got interesting from there because, instead of examining ACA Int’l’s analysis of ATDS functionality, the court limited its discussion to an observation that the D.C. Circuit had rejected the FCC’s interpretation of the term “capacity” in the 2015 ruling. However, as we’ve covered before, ATDS capacity versus functionality are two distinct topics, with the key issue being functionality. But the court stayed away from that issue, simply stating that “given” ACA Int’l, the court would follow the FCC’s prior 2003 predictive dialer ruling.
From there, the court found that under the 2003 ruling, “the focus is on whether the system can automatically dial a phone number, not whether the system makes it easier for a person to dial the number.” Applying this rule, the court held that the defendant’s system – which required agents to click a button in order to initiate a call – was not an ATDS because it “requires human intervention,” and “does not use an kind of predictive or statistical algorithm to engage in predictive dialing or minimize waiting time.”
What’s interesting here is that this case involved the same defendant, and same LiveVox MCA dialing system as Marshall v. Cbe Group, where the court held that the FCC’s prior predictive dialer rulings were no longer good law following ACA Int’l. While the courts ultimately reached the same conclusion – that the MCA is not an ATDS – they diverged as to the issue of whether the FCC’s 2003 ruling remains good law after ACA Int’l. This all goes to illustrate the continuing proliferation of inconsistencies in the law following ACA Int’l. But it’s not all bad news – it seems that regardless of what standard a court applies, the MCA (and perhaps other similar click-to-dial applications), still don’t qualify as an ATDS.