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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 is a partner who concentrates her practice in consumer financial services litigation and compliance, bankruptcy, and commercial litigation with an emphasis on creditor’s rights. She has a deep understanding of the complex compliance environment surrounding the financial services industry and regularly advises financial service companies on licensing and compliance issues involving state and federal consumer protection and finance statutes. Caren is the author of a daily blog titled: Consumer Financial Services Litigation and Compliance where she posts timely and informative updates regarding the CFPB, FTC, and a host of topical litigation issues involving consumer protection law....LEARN MORE