What We Know

Not All “Assisted-Dialing Programs” Are Created Equal

June 4, 2015 | by Caren D. Enloe

According to a federal court in Illinois, not all assisted dialing programs violate the Telephone Consumer Protection Act (TCPA). In Modica v. Green Tree Servicing, LLC, the plaintiffs filed suit seeking damages under the TCPA for calls made to their cell phones through automated telephone dialing systems without their prior express consent. Green Tree used two methods to make outgoing calls: a predictive dialing system (the “dialer”) and a custom-built “click” application that requires human intervention to initiate the dialer. While the click software was capable of interacting with the dialer, it could only do so once the agent signed into the dialer.

The parties disagreed as to whether the click software also constituted an automated telephone dialing system. On cross-motions for summary judgment, the issue before the court was “whether the equipment used to make calls to Plaintiffs through the “click” method, which was connected to a server but not directly logged into the Dialer, also had the present capacity to produce, store, and automatically dial phone numbers such that it qualified as an ATDS under the TCPA.”

The plaintiff contended that even though the agent was not logged into the dialer when she made the “click” calls, the agent had the capacity to login, thus had the capacity to auto-dial customer numbers. The Defendant contended that manual calls lacked the “capacity” to originate from an auto-dialer regardless of the fact that an agent can theoretically sign-on to the dialer. The Court agreed and granted summary judgment in Green Tree’s favor.

Keys to the Court’s decision: 

1 – the Court found that the agent would not have had the capacity to make auto-dialed calls without logging into the dialer.

2 – The equipment did not have the capacity to make calls without human intervention.

 

See Modica v. Green Tree Servicing, LLC, C.A. No. 14 C 3308 (N.D. Ill., Apr. 29, 2015).

Caren Enloe leads Smith Debnam’ s consumer financial services litigation and compliance group. In her practice, she defends consumer financial service providers and members of the collection industry in state and federal court, as well as in regulatory matters involving a variety of consumer protection laws.  Caren also advises fintech companies, law firms, and collection agencies regarding an array of consumer finance issues. An active writer and speaker, Caren currently serves as chair of the Debt Collection Practices and Bankruptcy subcommittee for the American Bar Association’s Consumer Financial Services Committee. She is also a member of the Defense Bar for the National Creditors Bar Association, the North Carolina State Chair for ACA International’s Member Attorney Program and a member of the Bank Counsel Committee of the North Carolina Bankers Association. Most recently, she was elected to the Governing Committee for the Conference on Consumer Finance Law. In 2018, Caren was named one of the “20 Most Powerful Women in Collections” by Collection Advisor, a national trade publication. Caren oversees a blog titled: Consumer Financial Services Litigation and Compliance dedicated to consumer financial services and has been published in a number of publications including the Journal of Taxation and Regulation of Financial Institutions, California State Bar Business Law News, Banking and Financial Services Policy Report and Carolina Banker.  ...LEARN MORE

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