DocketNumber: Case No: 8:16-cv-952-JDW-AAS
Citation Numbers: 341 F. Supp. 3d 1305
Judges: Whittemore
Filed Date: 9/24/2018
Status: Precedential
Modified Date: 7/25/2022
ORDER
BEFORE THE COURT are Defendant's Motion for Summary Judgment (Dkt. 98) and Plaintiff's opposition (Dkt. 104). Also before the Court are Plaintiff's Motion for Class Certification (Dkt. 91), Defendant's Response (Dkt. 93), and Plaintiff's Reply (Dkt. 94). Upon consideration, Defendant's Motion for Summary Judgment (Dkt. 98) is GRANTED . Plaintiff's Motion for Class Certification (Dkt. 91) is DENIED as moot.
Background
In this action alleging violations of the Telephone Consumer Protection Act,
Standard
Summary judgment is appropriate if Defendant shows "there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) ; Hickson Corp. v. N. Crossarm Co., Inc. ,
Automatic Telephone Dialing System
In its motion, Defendant contends that Plaintiff has not shown that it used an ATDS to make the calls to her cell phone, an essential element of a cause of action under § 227(b)(1)(A). (Dkt. 98, p. 3). More specifically, Defendant contends that it is entitled to summary judgment because the technology it used to call Plaintiff's cell phone, the Intelligent Mobile Connect system ("IMC System"), required human intervention before a call could be made, contrary to the statutory definition of an automatic telephone dialer system. (Id. at p. 12 ¶ 3). Defendant maintains that the undisputed facts show that 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. Plaintiff counters that although Defendant's agents clicked on the "Make Call" button to initiate a call, that only placed the number in a queue to be called, and a computer actually dialed the number. According to Plaintiff, human intervention was therefore not required to dial the number. (Dkt. 104, pp. 2, 18).
The Undisputed Facts
Eric Beekman, Defendant's Senior Director of Customer Relationship Management and Contact Management Marketing, testified that calls were placed manually by employees clicking a "Make Call" button on the IMC System computer screen (the IMC Desktop Application). (Dkt. 118, Beekman Dep., at 82:17-23, 101:20-21, 102:21-22, 103:20-24). Those employees are referred to as "manual dialing marketing agents." (Id. at 78:20-21). When an agent clicks on the "Make Call" button, "the phone number will be attempted to be dialed" through the IMC System. (Id. at 102:2-22).
Rian Logan, a technical sales consultant with Genesys
• The IMC System utilizes a business software automation tool called "Interaction Process Automation." (Id. at 20:24-25, 21:1-9, 21:19-21, 23:9-25, 24:1-25, 25:1-8).
• Interaction Process Automation handles the workflow function of retrieving and presenting a customer's record (name and phone number) to a console operator. (Id. at 24:15-21, 36:1-10, 68:2-8, 68:17-20, 129:19-24).
• Once the console operator receives a "work form" on their screen, i.e. , a number to dial, "[t]he console operator must click to dial." (Id. at 24:13-21, 46:12-23, 68:17-20, 129:17-21).
• When the "make call" button is pressed, a call is launched. (Id. at 46:12-23, 71:18-23, 72:3-4).
• "The media servers...then use call analysis to determine if it's a live speaker or not,...[it] will determine if it's a busy signal, an answering machine or live speaker....If it's a live speaker, its transferred to a waiting agent." (Id. at 24:21-25, 25:1-2).
• The calls are made through the Public Switched Telephone Network and technically categorized as Voice Over IP3 calls. (Id. at 23:9-20, 24:13-21, 57:4-7).
• The console operators are making "human-based" decisions as they "control the pace" of the calls and by "connecting available agents to people...." (Id. at 102:7-15, 103:2-15, 131:19-25).
• "If there are no available agents [and] you click the "make call" button, it will not make a call." (Id. at 112:1-2).
Accordingly, and as Logan explained, although these operators were "not ten-digit dialing" or "keying in all the 10 digits," they were manually clicking a button to initiate dialing. (Id. at 46:13-23, 74:6-7, 127:22-24).
Discussion
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) (emphasis added). This defining characteristic of an ATDS resolves the dispute in this case. The 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.
The TCPA prohibits any person from "mak[ing] 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...to any telephone number assigned to a...cellular telephone service."
*1309The TCPA defines an "automatic telephone dialer system" as "equipment that has the capacity...to store or produce telephone numbers to be called, using a random or sequential number generator; and...to dial such numbers." § 227(a)(1)(A)-(B).
The FCC has, on numerous occasions, confirmed this definition. See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 27 F.C.C. Rcd. 15391, 15392 ¶ 2 n.5 (2012 FCC Ruling) ; In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 23 F.C.C. Rcd. at 566 ¶ 13 (2008 FCC Ruling). Most recently, on March 16, 2018, the FCC issued a ruling purporting to clarify and effectively expand the definition of an ATDS. See In the Matter of Rules & Regulations Implementing the Tel.Consumer Prot. Act of 1991 , 30 F.C.C. Rcd. 7961 (2015 FCC Ruling). However, that "effort to clarify the types of calling equipment that fall within the TCPA's restrictions" was set aside in ACA Int'l v. Fed. Commc'n Comm'n ,
Relevant here, ACA Int'l left intact earlier FCC rulings that "the 'basic function' of an autodialer is to dial numbers without human intervention:"
For instance, the ruling states that the "basic function" of an autodialer is the ability to "dial numbers without human intervention." 2015 Declaratory Ruling, 30 FCC Rcd. at 7973 ¶ 14 ; id. at 7975 ¶ 17. Prior orders had said the same. 2003 Order, 18 FCC Rcd. at 14,092 ¶ 132 ; 2008 Declaratory Ruling, 23 FCC Rcd. at 566 ¶ 13. That makes sense given that "auto" in autodialer-or, equivalently, "automatic" in "automatic telephone dialing system,"47 U.S.C. § 227 (a)(1) -would seem to envision non-manual dialing of telephone numbers.
But the Commission nevertheless declined a request to "clarify[ ] that a dialer is not an autodialer unless it has the capacity to dial numbers without human *1310intervention." 2015 Declaratory Ruling, 30 FCC Rcd. at 7976 ¶ 20. According to the Commission, then, the "basic function" of an autodialer is to dial numbers without human intervention, but a device might still qualify as an autodialer even if it cannot dial numbers without human intervention. Those side-by-side propositions are difficult to square.
Id. at 703.
In sum, the holding in ACA Int'l , the statutory definition of an ATDS, and prior FCC rulings interpreting that definition provide the necessary guidance in determining whether Defendant's IMC System is an ATDS. See Dominguez v. Yahoo, Inc. ,
Although Plaintiff acknowledges "clicker agents" initiate the calling process by clicking the "Make Call' button, she argues that internal software on the server dials the numbers, rather than humans, and that "human intervention is not only not required at the point in time at which the number is dialed, it is not possible as the number is dialed later." (Dkt. 104, pp. 8, 14). Specifically, she argues that "[e]very single call in the IMC System is automatically dialed by computer software from a queue of telephone numbers," "while no human being is on the phone." (Id. at pp. 12-13). She contends that "[t]he clicker agents do not have the ability to confirm whether or not telephone numbers are 'correct' before submitting those numbers to the dialer queue...[and] the 'Make Call button' does not launch a call or dial a telephone number." (Id. at p. 13). ACA Int'l effectively rejects that contention.
In its discussion of the statutory requirement that an autodialer have the "capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers," the court found that the "ruling's reference to 'dialing random or sequential numbers' means generating those numbers and then dialing them" and observed "that the ruling distinguishes between use of equipment to 'dial random or sequential numbers' and use of equipment to 'call[ ] a set list of consumers.' " ACA Int'l ,
*1311The Experts
In addition to the testimony of Beekman and Logan, Defendant relies on the opinion of its expert, Kenneth Sponsler, in support of its contention that human intervention is necessary before a call is placed on the IMC System. To formulate his opinion, Sponsler conducted onsite inspections of the IMC System and conferred with the architects and operators of the system. (Dkt. 121, Sponsler Dep., at 47:11-14, 49:10-17, 50:9-11). According to Sponsler, in general, on the IMC System, "dial flow is a manual process." (Id. at 94:21-22). The CIC database stores telephone numbers. (Id. at 67:21-23). Names and numbers are presented to the agents, [through the IMC Desktop Application] who then click the "Make Call" button. (Id. at 68:7-12, 84:23-25, 84:1). Prior to clicking this button, the phone numbers have not made it to the process that dials numbers. (Id. at 68:19-25). Software on the CIC server dials the number. (Id. at 56:16-21, 57:1-2).
Sponsler testified that the agents do not have to dial every customer whose phone number displays on their screen, but rather "it is the option that the agent has to either make the call or not." (Id. at 85:11-13:21-22). "It's very manual....It's the agents that are making [sic] clicking and observing the console and seeing if there are available agents or not and making the decision to call." (Id. at 93:23-25, 94:1-2). The IMC System does not control the dial rate, the agents do. (Id. at 63:17-25).
According to Sponsler, "human intervention in this case is the human intervention step to dial." (Id. at 101:9-10, 102:11-12). He identified three components which demonstrate that Defendant's system is not an ATDS: (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. at 95:4-14). Sponsler's opinion is consistent with the testimony of Beekman and Logan, individuals with personal knowledge of the IMC System.
Based on the undisputed testimony of Beekman and Logan, and confirmed by Sponsler's opinion, human intervention is required before a phone call could be placed by Defendant's IMC System. Indeed, for purposes of summary judgment, independent of Sponsler's opinion, as explained by Beekman and Logan, Defendant's "manual dialing marketing agents" were integral to initiating each phone call.
The opinion of Plaintiff's expert, Randall Snyder, does not alter this finding. Nor does it create a material issue of fact.
Snyder's opinion, like Plaintiff's argument, fails to appreciate the integral part that human intervention plays in the calling process.
*1313Finally, Plaintiff argues that the IMC System is a predictive dialer under the TCPA. "A predictive dialer is an automated dialing system that uses a complex set of algorithms to automatically dial consumers' telephone numbers in a manner that 'predicts' the time when a consumer will answer the phone and a telemarketer will be available to take the call." In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 18 F.C.C. Rcd. 14014, 14022 n.31 (2003 FCC Ruling). A predictive dialer may fall within the TCPA's definition of an ATDS, even though it may not "store or produce telephone numbers to be called, using a random or sequential number generator." Id. at ¶ 133.
Nothing in the evidence, however, demonstrates that the IMC System used a predictive algorithm or function to engage in predictive dialing. Indeed, the undisputed evidence demonstrates that the IMC System did not have the functionalities of a predictive dialer.
As noted, Plaintiff's expert, Snyder, acknowledges that the calls are initiated when the "Make Call" button is clicked, and "[e]ach click provides a telephone number to the dialing system so that those numbers can be dialed by that system, thus initiating outbound telephone calls." (Dkt. 104-3, Snyder Expert Report, at ¶ 59); see also (Dkt. 120, Snyder Dep., at 117:8-20 (If the "Make Call" button is not clicked, "the number would not be presented to the dialing system and the dialing *1314system wouldn't dial that number.") ).While Snyder professes not to know what constitutes human intervention, the evidence shows that human intervention is necessary for numbers to be dialed, the antithesis of a predictive dialer.
Accordingly, Plaintiff's claim that Defendant placed calls to her cell phone using an ATDS without her consent in violation of the TCPA fails as a matter of law. Defendant's Motion for Summary Judgment (Dkt. 98) is GRANTED .
Motion for Class Certification
"The burden of establishing the propriety of class certification rests with the advocate of the class" Valley Drug Co. v. Geneva Pharms., Inc. ,
Plaintiff proposes a class of:
All persons in the United States whose cellular telephone number Defendant called using the IMC System between October 16, 2013 and April 2, 2014 where the IMC system recorded a result of either "Connected" or Machine." (Dkt. 91, p. 2).
Plaintiff's proposed class, like her individual claim, relies on Defendant's use of an ATDS to place calls. Since Defendant's IMC System is not an ATDS, Plaintiff's Motion for Class Certification is DENIED as moot.
Conclusion
Accordingly, Defendant's Motion for Summary Judgment (Dkt. 98) is GRANTED . Plaintiff's Motion for Class Certification (Dkt. 91) is DENIED as moot. The Clerk is directed to enter judgment in favor of Defendant, Hilton Grand Vacations Company, LLC and against Plaintiff, Melanie Glasser.
DONE AND ORDERED this 24th day of September, 2018.
Plaintiff's Complaint alleges that the automated calls occurred "[t]hroughout the month of February 2016." (Dkt. 1 ¶ 13). Notwithstanding, both parties discuss a date range of "between October 16, 2013 and April 2, 2014."
Genesys purchased Interactive Intelligence Inc. in 2016. (Dkt. 119, Logan Dep., at 9:3-5). Interactive Intelligence Inc. developed and licensed the IMC System to Defendant. (Dkt. 104-14). Prior to working at Genesys, Logan worked as a technical sales consultant for Interactive Intelligence Inc. (Dkt 119, Logan Dep., at 8:18-22).
Voice Over Internet Protocol is a technology that transmits voice calls using a broadband internet connection instead of a regular phone line. Voice Over Internet Protocol (VoIP), Fed. Comm. Commission, https://www.fcc.gov/general/voice-over-internet-protocol-voip (last visited August 15, 2018).
The TCPA was enacted in response to evidence "that automated or prerecorded calls are a nuisance and an invasion of privacy." Mais v. Gulf Coast Collection Bureau, Inc. ,
The FCC has issued numerous rulings interpreting what qualifies as an ATDS. See In the Matter of Rules & Regulations Implementing the Tel.Consumer Prot. Act of 1991 , 30 F.C.C. Rcd. 7961, 7971-7978, ¶¶ 10-24 (2015 FCC Ruling) ; In the Matters of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 27 F.C.C. Rcd. 15391, 15399 (2012 FCC Ruling) ; 2008 In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 23 F.C.C. Rcd. at 566 ¶ 13 (2008 FCC Ruling) ; In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 18 F.C.C. Rcd. 14014, 14091-93 ¶¶ 131-134 (2003 FCC Ruling). As noted, an FCC Ruling has the force of law and a district court is without jurisdiction to consider its validity. Mais ,
ACA Int'l involved a consolidated appeal from several Circuits. Although not expressly addressed by the Eleventh Circuit, other circuits have held that when an FCC order is appealed in several jurisdictions and combined for review in one circuit, the circuit decision is binding. See Sandusky Wellness Ctr., LLC v. ASD Specialty Healthcare, Inc. ,
Keim v. ADF Midatlantic, LLC , No. 12-80577,
Indeed, in pointing out one inconsistency in the ruling's clarification of the definition of an autodialer, the court pondered: "So which is it: does a device qualify as an ATDS only if it can generate random or sequential numbers to be dialed, or can it so qualify even if it lacks that capacity? The 2015 ruling, while speaking to the question in several ways, gives no clear answer (and in fact seems to give both answers).It might be permissible for the Commission to adopt either interpretation. But the Commission cannot, consistent with reasoned decisionmaking, espouse both competing interpretations in the same order. " Id. at 703.
The undisputed evidence demonstrates that Defendant compiled a list of telephone numbers belonging to "Hilton honors members," "customers of Hilton through book reservations," and its "current owner base." (Dkt. 118, Beekman Dep., at 25:17, 18; 27:2). This list was "scrubbed" once a week to exclude landline numbers from being called, to insure that only cell numbers were called. (Id. at 49:16-22, 60:20-22). Individual records were pulled from this list and presented to manual dialing marketing agents via the IMC System. (Id. at 105:2-6, 105:17-25-106:1-2, 136:24-25-137:1-15).
Snyder's opinion notwithstanding, summary judgment is not precluded. See Buckler v. Israel ,
Similarly, in Marshall v. CBE Group, Inc. , No. 2:16-cv-02406,
Snyder asserts that the [system] is really designed to perform the function of providing telephone numbers to a dialing system, one at a time by clicking an icon. Therefore, 'the clicker agent who is clicking [ ] is not performing any type of dialing process; rather, the clicker agent is simply causing a telephone number to be supplied to the [system] to be automatically dialed by that system."
Id. The district court noted the significance of "human intervention" in the ATDS analysis, and acknowledged other district court rulings with respect to similar "point-and-click" systems. Id. at *7. The court found that the clicker agent's actions were "integral to initiating outbound calls." Id. (emphasis added). I agree with this reasoning.
Several district courts in this Circuit have found that dialing systems which require agents to use "point and click" technology to initiate calls are not autodialers because "human intervention" is required to make such calls. See Maddox v. CBE Group, Inc. , No. 1:17-cv-1909,
District courts across the country have consistently issued similar rulings. See Ammons v. Ally Fin., Inc. ,
Other courts have held that the human intervention either occurred too early or late in the process. See Somogyi v. Freedom Mortgage Corporation , No. 17-6546,
Human intervention is likewise a key-factor in analyzing predictive dialers. See In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 18 F.C.C. Rcd. 14014, 14091 ¶132 (The FCC's clarification incorporating "human intervention" into the interpretation is directly discussed in the section of the Ruling entitled "Predictive Dialers."). See also Brown v. NRA Group, LLC , 6:14-cv-610,
Snyder testified "I don't necessarily know what human intervention is." (Dkt. 120, Snyder Dep., at 83:1-5).