Well folks the first domino may have just fallen.
As I wrote just days ago, the Marks ATDS formulation is not as monolithic as it may first appear. Yes it is formidable in its breadth, but it leaves a lovely little string dangling—the dialer must call from a list “automatically.” What the term “automatically’ means very much remains to be seen. But we now have, at least, our first case limiting the scope of Marks where calls are made manually.
In Ammons v. Diversified Adjustment Serv., Case No 2:18-cv-06489-ODW (MAAx), 2019 U.S. Dist. LEXIS 175842 (C.D. Cal. Oct. 9, 2019) the Court granted the Defendant’s motion for summary judgment challenging the Plaintiff’s TCPA claim in a debt collection case. Each of the 77 calls at issue were made using the LiveVox HCI dialer—the most battle-tested “manual intervention” dialer on the market.
The factual record on the motion demonstrated that the LiveVox HCI system was “purposefully designed to require a human component to initiate each call through that platform, and to be incapable of automated calling.” Instead, the human component, a “clicker agent,” must physically click a dialog box to launch each individual call. And there’s a real element of human intervention here— “[t]he clicker agent verifies that a “closer agent” is available to receive the call before launching it; LiveVox HCI does not use any predictive algorithms in launching the calls. Finally, Defendant’s evidence showed that LiveVox HCI has no capacity to “store numbers to be called, to produce numbers to be called using a random or sequential number generator, or to dial numbers automatically.”
Plaintiff countered that HCI certainly has the ability to store numbers to be called—dialing campaigns are set up in the system just like in a predictive dialing system. But the Court recognizes that calls to those stored numbers only occurs by a result of “human intervention”—the system does not have the capacity to “automatically” dial. And the Court rejects Plaintiff’s argument that the level of human intervention involved is too minimal—although the Plaintiff asserts that the human involvement is “unnecessary” and designed solely to avoid TCPA liability (hey, what’s wrong with that?) the Court concluded that the level of intervention was sufficient to remove the device from statutory coverage.
As the Court puts it:
LiveVox HCI goes far beyond merely triggering a system to run automatically. It requires human interaction to initiate each call. The Court agrees with other courts to consider the LiveVox HCI system and, applying Marks, finds that the clicker agent’s role precludes LiveVox HCI from qualifying as an ATDS.
While Ammons—where have I heard that name before?—is obviously a big win for users of HCI, it stands tall as the first decision within the Ninth Circuit to delimit he extent of Marks. Notably the Court in Hatuey v. IC Sys., No. 1:16-cv-12542-DPW, 2018 U.S. Dist. LEXIS 193713 (D. Mass. Nov. 14, 2018) likewise concluded that the HCI system survived analysis even under Marks, (Good) Ammons is the first district court to consider the issue while bound to follow Marks.