In Goad v. Censeo Health, LLC., 2016 WL 2944658, at *2-3 (E.D.Ark., 2016), Judge Holmes granted summary judgment to a TCPA defendant, finding that no autodialer was used due to the requirement of human intervention.
“The term ‘automatic telephone dialing system’ means equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” 47 U.S.C. § 227(a)(1). “The Commission has emphasized that this definition covers any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers are randomly or sequentially generated or come from calling lists.” Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 27 FCC Rcd. 15391, 15392, n.5 (2012) (emphasis in original). “[T]he basic functions of an autodialer are to dial numbers without human intervention and to dial thousands of numbers in a short period of time.” Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7975, ¶ 17 (2015) (internal quotations omitted). To be an autodialer, a system does not need the present ability to dial random and sequential numbers without human intervention. Id. at 7974 ¶ 15. If by adding software a system can dial random and sequential numbers without human intervention, then it has the capacity to be an autodialer and falls under the TCPA. Id. at ¶ 16. However, “there must be more than a theoretical potential that the equipment could be modified to satisfy the ‘autodialer’ definition.” Id. at 7975, ¶ 18. Uncontroverted testimony that a system is very clearly not an automatic telephone dialing system warrants summary judgment. Smith v. Securus Techs., Inc., 120 F.Supp.3d 976, 984 (D. Minn. 2015). Censeo Health has provided such testimony. Goad has not rebutted it. Censeo Health provided an affidavit from Archie Block, the Director of IT, Security, and Technology Operations for Censeo Health. Document #14-1. In that affidavit, Block testified that Censeo Health’s employees manually dial each call by pressing a button for each digit in the telephone number. Id. at 2, ¶ 9. He also testified that the computer system prompts the employees to dial certain numbers which are displayed to the employee. Id. at ¶ 10. He further testified that the computer system has no dialing mechanism through which it can place telephone calls and it is entirely separate from the telephone system used to place calls. Id. In response, Goad cites to documents found online at the website of Cisco System, Inc., which manufactured the telephone system used by Censeo Health. Document #21 at 9; Document #21-5. Goad argues that these online documents show that Cisco’s telephone systems have the capacity to generate numbers and dial them without human interaction. Document #21 at 9. Goad also testified that he heard a beep and a pause at the outset of many of the calls which suggested to him that the calls were autodialed. Document #21-1 at 1. As Censeo Health points out, inadmissible hearsay cannot be used to defeat summary judgment. Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 817 (8th Cir. 2010). The documents provided from the online search are unsworn, out-of-court statements offered to prove that the Cisco telephone system used by Censeo Health has the capacity to be an automated telephone dialing system. Those documents do not fall within any exemption to the rule excluding hearsay. They are, therefore, inadmissible. Second, even if these documents were admissible, evidence would be required to match Censeo Health’s telephone system with the system that the online documents describe. No such evidence has been provided. In discovery, Censeo Health disclosed that it uses the Cisco Unified IP Phone. Document #21-4. One of the online documents upon which Goad relies is the Outbound Option User Guide for Cisco ICM/IPCC Enterprise & IPCC Hosted Editions. That document states that “[t]his manual describes how to administer and use the Cisco Intelligent Contact Management (ICM)/IP Contact Center (IPCC) Outbound Option application (formerly called ‘Blended Agent’).” Document #21-5 at 2. The other document upon which Goad relies is entitled, “Outbound Option Guide for Cisco Unified Contact Center Enterprise and Hosted Release 9.0(1).” Document #21-6. No evidence establishes that the Cisco Unified IP Phone has any of the features or potentially has the features described in these two documents or that it could have them with the addition of software. Last, Goad’s testimony about the beep and pause is not enough to rebut Block’s testimony. No evidence in the record shows that a beep and pause means an autodialer was being used to make the call. See Estrella v. Ltd Fin. Servs., LP, No. 8:14-CV-2624, 2015 WL 6742062, *3-4 (M.D. Fla. Nov. 2, 2015) (finding no foundation or support for the conclusion that “clicks and delays” and “prolonged silences” means an autodialer or predictive dialer was being used). Censeo Health presented evidence that its telephone system requires human intervention to function. Goad’s evidence does not establish that the telephone system has the capacity to be an autodialer. Therefore, Goad has failed to present evidence to establish an essential element of his TCPA claim.