Not All Assisted Dialing Programs Are Created Equal: Click Dialing Does not Violate TCPA

According to a federal court in Illinois, not all assisted dialing programs violate the TCPA.  In Modica v. Green Tree Servicing, LLC, the plaintiffs filed suit seeking damages under the TCPA for calls made to their cell phones though automated telephone dialing systems without their prior express consent.  See Modica v. Green Tree Servicing, LLC, C.A. No. 14 C 3308 (N.D. Ill., Apr. 29, 2015).  In Modica, Green Tree used two methods to make outgoing calls.  The first was a predictive dialing system (the “dialer”) which both parties agreed was an ATDS.   The second was a custom built user interface software that accessed the customer’s phone number that was stored on a server and required a human to “click” a dial option.  The click option required the agent to first locate the number by connecting to the server and then clicking the telephone number on his computer.  While the click software was capable of interacting with the dialer, it required that the agent take an additional step to do by signing in to the dialer.

While the parties agreed that the predictive dialer constituted an automated telephone dialing system under the TCPA, they disagreed as to whether the equipment used to make calls through the click technology also was an ATDS.  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.”  Plaintiff contended that even though the agent was not logged into the dialer when she made the “click” calls, she had the capacity to log into the dialer from her computer and therefore had the capacity to auto-dial customer’s numbers.  Defendant, relying on an earlier opinion from the same district, contended that manually made calls do not have the “capacity” to be made from an auto-dialer just because the agent could theoretically sign on to the dialer.  The court agreed with Green Tree and granted summary judgment in its favor as to the calls made with the click technology. 

There were two keys to the court’s decision that interested parties should pay particular attention to.  First, the court found that the agent would not have had the capacity to make auto dialed calls without logging into the dialer.  Since the agent was not taken the additional step to log into the dialer, there was no capacity to make auto dialed calls.  Second, absent that additional step, the equipment did not have capacity to make calls without human intervention.