In Glasser v. Hilton Grand Vacations Company, LLC., 2018 WL 4565751, at *5–7 (M.D.Fla., 2018), Judge Whittemore granted summary judgment to a TCPA defendant on the basis that no ATDS was used.
According to Sponsler, “human intervention in this case is the human intervention step to dial.” (Id. at 101:9-10, 102:11-12). He identified three components which demonstrate that Defendant’s system is not an ATDS: (1) “…no call can ever be placed without human intervention for each and every call;” (2) “the system is not capable of dialing from a list of numbers;” and (3) “the system does not produce or store numbers that have been randomly or sequentially generated and didn’t dial them.” (Id. at 95:4-14). Sponsler’s opinion is consistent with the testimony of Beekman and Logan, individuals with personal knowledge of the IMC System. Based on the undisputed testimony of Beekman and Logan, and confirmed by Sponsler’s opinion, human intervention is required before a phone call could be placed by Defendant’s IMC System. Indeed, for purposes of summary judgment, independent of Sponsler’s opinion, as explained by Beekman and Logan, Defendant’s “manual dialing marketing agents” were integral to initiating each phone call. The opinion of Plaintiff’s expert, Randall Snyder, does not alter this finding. Nor does it create a material issue of fact. While acknowledging that human intervention is necessary in the calling process, (Dkt. 104-3, Snyder Expert Report, at ¶¶ 59, 63, 64; Dkt. 120, Snyder Dep., at 115:10-15, 152:10-13, 164:3-4), Snyder focuses on when the calls are actually dialed, rather than the agents pushing the “Make Call” button to initiate the calling process. (Dkt. 104-3, ¶ 64 (“There is no doubt that some human agency is involved in this process,…but this human agency is not involved in the process of dialing telephone numbers.”)). According to Snyder, since the software function on the CIC server dials the number, the IMC System dials numbers without human intervention. (Id. at ¶ 2). Snyder’s opinion, like Plaintiff’s argument, fails to appreciate the integral part that human intervention plays in the calling process. ACA Int’l makes it clear that an autodialer must both generate the numbers and dial them. Accordingly, it matters not that the computer actually dials the number forwarded to it by the clicking agent. Rather, the focus is on the agent’s human intervention in initiating the calling process. Since it is undisputed that calls cannot be made unless an agent clicks on the screen and forwards a telephone number to the server to be called, Defendant’s “point-to-click” system does not constitute an autodialer system under the TCPA. Finally, Plaintiff argues that the IMC System is a predictive dialer under the TCPA. “A predictive dialer is an automated dialing system that uses a complex set of algorithms to automatically dial consumers’ telephone numbers in a manner that ‘predicts’ the time when a consumer will answer the phone and a telemarketer will be available to take the call.” In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 F.C.C. Rcd. 14014, 14022 n.31 (2003 FCC Ruling). A predictive dialer may fall within the TCPA’s definition of an ATDS, even though it may not “store or produce telephone numbers to be called, using a random or sequential number generator.” Id. at ¶ 133. Nothing in the evidence, however, demonstrates that the IMC System used a predictive algorithm or function to engage in predictive dialing. Indeed, the undisputed evidence demonstrates that the IMC System did not have the functionalities of a predictive dialer.13 Rather, the evidence shows that the “clicker agents” control the pace of the calling based on what they observe at their workstations. As noted, Plaintiff’s expert, Snyder, acknowledges that the calls are initiated when the “Make Call” button is clicked, and “[e]ach click provides a telephone number to the dialing system so that those numbers can be dialed by that system, thus initiating outbound telephone calls.” (Dkt. 104-3, Snyder Expert Report, at ¶ 59); see also (Dkt. 120, Snyder Dep., at 117:8-20 (If the “Make Call” button is not clicked, “the number would not be presented to the dialing system and the dialing system wouldn’t dial that number.”)).While Snyder professes not to know what constitutes human intervention, the evidence shows that human intervention is necessary for numbers to be dialed, the antithesis of a predictive dialer. Accordingly, Plaintiff’s claim that Defendant placed calls to her cell phone using an ATDS without her consent in violation of the TCPA fails as a matter of law. Defendant’s Motion for Summary Judgment (Dkt. 98) is GRANTED.