CHICAGO — A Chicago federal judge has ruled that telemarketing calls filtered through a human-initiated and controlled dialing system does not amount to an illegal robocall under federal law, keeping in line with decisions in other states.
In a potential class action lawsuit, plaintiff Ashok Arora had accused Transworld Systems Inc. of using an automated dialing system to call his cellphone multiple times, as well as those of potentially many others. The company, however, in a motion for summary judgment, told the court its program shouldn't be considered an auto-dialer, as the calls must first be initiated by a human “clicker agent" - or a human, at a computer, who must first click a mouse or a button to initiate the call.
U.S. District Judge Charles P. Kocoras granted the summary judgment in a decision filed in the U.S. District Court for the Northern District of Illinois.
“[I]t’s yet another ruling the LiveVox’s Human Call Initiator system is not an autodialer, joining decisions from Florida and Michigan,” said Diana Eisner, a Washington, D.C., attorney at Manatt, Phelps & Phillips, who followed the case. “It’s also a good sign that the courts, with respect to this platform, have reached the same result, as it allows for consistency across jurisdictions. In the more general sense, it adds to the growing body of case law which takes a common sense approach to assessing whether a platform is an autodialer by focusing on human intervention.”
Diana Eisner Manatt.com
Arora had argued that the human call Initiator has the “potential capability” to be converted to an ATDS, but the court rejected this, both in light of decisions in the face of similar arguments in Florida and Michigan, and a lack of specific evidence provided by Arora.
This case is one in an ever-growing number of TCPA-based lawsuits.
“TCPA litigation continues to be filed at an alarming rate,” Eisner said. “Unfortunately, given the uncapped statutory damages and the very high settlements we are seeing across industries, I don’t really see this trend slowing down. But this ruling provides companies with some additional guidance so that they can take steps to reduce their TCPA litigation risk, at least with respect to claims that an autodialer was used to place calls.”
In light of this and other TCPA rulings, Eisner said businesses should review their dialing systems.
“Businesses which engage with consumers by phone should carefully assess the dialing platforms they are using and strive to ensure they are using at least click-to-call," she said. "[T]he LiveVox HCI line of cases suggest that ‘ten keying’ a number is not necessarily required... But beyond all else, consent is golden and businesses should strive to ensure they have proper consent under the TCPA.”