The precise meaning of the phrase “human intervention” continues to plague courts that stubbornly continue to apply the 2003 and 2008 FCC Orders. A significant case in that context is Ramos v. Hopele of Fort Lauderdale, LLC, 334 F. Supp. 3d 1262 (S.D. Fla. 2018), which the Czar blogged about here. Ramos is significant because it was one of the first courts to recognize that human intervention does not have to occur when a call or text is launched. Instead, a system is not an ATDS, or a predictive dialer, if a human controls the timing function and establishes a call campaign.
But Ramos was decided on summary judgment after both parties laid out how the system actually works in practice. Recently, the same court that decided Ramos denied a motion to dismiss in a case involving the same texting platform as Ramos. See Spinelli v. Storm Tight Windows, 2019 U.S. Dist. LEXIS 27573 (S.D. Fla. Feb. 21, 2019). The court noted that Ramos did not establish a “judicial fact” regarding the EZ-Texting platform. Factual development on summary judgment is therefore necessary.
Although undoubtedly frustrating to the defendant, Spinelli is a reminder that the actual operation of a system matters and that proper factual development is critical. It can also be used to frustrate plaintiff’s efforts to claim all systems work the same and that just because one defendant operates a system without human intervention, others do so as well. Instead, as Ramos and other courts recognize, how a system is used, not its theoretical capabilities, determine whether it is an ATDS.