In Freyja v. Dun & Bradstreet, Inc., here, Judge Fischer granted summary judgment to a defendant in a TCPA case because human intervention involved in the call disqualified the call as being from an ATDS.
The undisputed facts demonstrate that Plaintiff was not called from an ATDS. An ATDS is a piece of “equipment which has the capacity to (a) 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 long held that the basic functions of an autodialer are to ‘dial numbers without human intervention’ and to ‘dial thousands of numbers in a short period of time.” In the Matter of Rules & Regulations Implementing the TCPA of 1991, FCC 15-72, ¶ 17 (July 10, 2015). The uncontroverted testimony of the actual agent at Convergys who called Plaintiff shows that the agent called Plaintiff manually using an Avaya 4610 desktop telephone. (SUF ¶¶ 58-59.) The uncontroverted testimony of Convergys’s Director of Network Services is that an Avaya 4610 phone cannot, itself, be used as an autodialer. (See SUF ¶¶ 84-94.) It could, at best, be used to receive calls from an autodialer if the agent’s computer had the appropriate software, the agent had proper login credentials, and the dialer was appropriately configured. (SUF ¶¶ 78-79.) But none of this was true for the phone used by the agent that called Plaintiff. (SUF ¶¶ 80-83.) Plaintiff’s opposition does not contradict these facts and, instead, tosses out other facts – such as the phone’s connection to Convergys’s Avaya private branch exchange (PBX) and its connection to a desktop computer – with no explanation of why those facts contradict anything said by Convergys’s representatives.