Even under Marks, a manually-dialed call remains excluded from the TCPA, at least according to a new decision out yesterday.
The District Court in Hatuey v. Ic Sys., No. 1:16-cv-12542-DPW, 2018 U.S. Dist. LEXIS 193713 (D. Mass. Nov. 14, 2018) declined to definitively take a side on the definition of ATDS. Instead – when it came to the LiveVox HCI – the Court found that the system was not an ATDS even under the “broad reading of the FCC’s definition of an ATDS as a system which may draw phone numbers from a database, rather than only through a random or sequential number generator.”
The court surveyed the lay of the land on the definition of ATDS, noting all the different angles the FCC and courts have looked at over the years. Does an ATDS dial from lists? Without human intervention? Is random or sequential number generation required? But the court found that it didn’t need to consider which interpretation is the correct one because – even taking the broadest definition from the FCC’s now-invalidated 2015 order – the LiveVox HCI wasn’t an ATDS. This was especially so given the absence of any evidence from the Plaintiff establishing a triable issue over whether the system was an ATDS, like software manuals, instructions, or guides. Thus, it found summary judgment was warranted in favor of the Defendant.
Notably, this isn’t a surprising result. The LiveVox HCI is a manual clicker application that has been found not to be an ATDS in many other cases. See e.g. Schlusselberg v. Receivables Performance Mgmt., LLC, No. 15-7572(FLW), 2017 U.S. Dist. LEXIS 100710, at *10 (D.N.J. June 29, 2017) (collecting cases). And you can the Hatuey case to that list now.
HCI was also famously mistaken for a predictive dialer– but still found not to be an ATDS— in Flemming a few weeks back, creating a district court split within the D. New Jersey on the issue of whether or not a predictive dialer qualifies as an ATDS.
Nonetheless, Hatuey is an important first post-Marks datapoint on the definition of “automatic.” Whatever it mnay mean, we know that calling using a clicker agent is not “automatic” dialing for purposes of the Marks definition, at least according to one district court in Massachusetts. More to come.