Editor’s Note: Live Vox’ GC comments on this are here.
This might be the oddest ATDS case I’ve seen yet.
No, I’m serious.
Let’s start with this.
Imagine a post-Facebook ATDS summary judgment decision where neither party apparently raised the issue of R&SNG usage:
Neither party indicates the significance of whether HCI has the capacity to generate and dial ten-digit telephone numbers and the capacity to do so is not relevant to the instant motions.
I mean, seriously?
So despite the fact that the only applicable legal standard dispositive of whether Live Vox HCI is an ATDS was not even addressed in its motion (apparently) Defendant yet somehow moved for summary judgment arguing that Live Vox was not an ATDS.
I guess we shouldn’t be surprised that they lost the issue. And they did.
In Kuch v. Phh Mortg. Corp., 16-CV-00056V(F), 2021 U.S. Dist. LEXIS 165456 (W.D.N.Y. August 31, 2021) the Court held that Live Vox’s famous HCI system with all those great ATDS victories behind it, might be an ATDS after all.
Readers of TCPAWorld.com know that HCI was the gold-standard of click-to-dial systems in the old pre-Facebook world. HCI had tons of great victories holding that its system required manual intervention at point of dial, which removed HCI from TCPA’s ATDS definition under the old “human intervention” test.
Post-Facebook, however, human intervention is seemingly dead–see FN6– meaning that the only issue that matters is whether a system uses a R&SNG. (FN6, coupled with FN7 and the Florida Mini-TCPA bill have highlighted the importance of so-called “human selection” systems that do more than require click to dial–they require human selection of dialing sequence.)
Defendant’s late-designated Live Vox witness in Kuch was apparently going to opine that Live Vox does not use an R&SNG but the Court refused to hear from her–again, she was apparently designated late–at least until a deposition was provided.
But, oddly, it doesn’t look like it would have mattered anyway. As already noted, the Kuch court did not apply R&SNG usage as the touchstone of its analysis as it should have. Rather the Court seemingly just accepted Plaintiff’s assertions that LiveVox might be an ATDS and found the Defendant’s evidence– a late witness designation and a declaration from a corporate executive apparently unqualified to discuss the platforms’ functionality–was insufficient to require a finding in its favor. So the issue survived summary judgment.
Notably this is the first case I can think of in which HCI–as opposed to other Live Vox products–was directly held to potentially be an ATDS. And its a real head scratcher. As I’ve pointed out already, however, I really think this has more to do with briefing/evidentiary issues than any defect in the HCI solution. (This is not a case where, for instance, the Court determined that HCI does not meet the Facebook test.)
Interestingly enough, the Kuch Court ultimately bailed out PHH and determined that it had consent to make the calls at issue anyway–so stay with me on this one. Now savvy TCPAWorld dwellers are thinking–no way the caller was using HCI to call consented numbers, so what gives?
Well the Plaintiff apparently specifically told PHH not to call him using an ATDS and later asked for calls made using an ATDS to stop. I think most of us–and more pertinently, most courts–would conclude that such activity reflects a lack of consent. But the Kuch court disagreed with Plaintiff’s position.
Specifically the Kuch court determined that express consent is blanket permission to call and a Plaintiff simply cannot limit consent to only specific types of contact methods:
Here, a plain reading of § 277(b)(2), which makes it unlawful to use an ATDS or artificial or prerecorded voice to place calls to a cellphone, simply requires the “prior express consent of the called party,” and makes no provision for the called party to limit such consent.
Interestingly, the Court also determined that prior to the Omnibus–July 10, 2015–oral revocation was not permitted. Old timers might recall there used to be a split between the Courts as to whether TCPA consent could be revoked in writing or orally. The Omnibus resolved that split but the WD New York was, historically, a jurisdiction that allowed only written consent. The Kuch court apparently reached back to those olden-day decisions to bail PHH out, although it didn’t actually cite to any supporting opinions.
Either way, since the Plaintiff’s alleged “limitation” of consent occurred prior to the Omnibus, the Court found Plaintiff’s conduct was an unenforceable oral revocation and was not valid to strip PHH of the right to call using an atds.
What a wild ride.
So to recap– Plaintiff asked not to receive calls using an ATDS. PHH likely treated that as a revocation and moved Plaintiff to its manual solution. The Court finds, however, that the manual solution–HCI–might be an ATDS. But determines Plaintiff’s requests not to receive calls using an ATDS was not a valid limitation/revocation of consent to begin with.
That’s TCPAWorld for you.
For those of you attending the Regulatory Compliance Conference in DC next weekend(!) I’ll be sure to discuss this one in some depth.
My slot: Sunday, September 12, 2021–2 pm ET
Hope to see you there!