In Espejo v. Santander Consumer United States, No. 11 C 8987, 2019 U.S. Dist. LEXIS 98445 (N.D. Ill. June 12, 2019), Judge Kocoras denied an automobile finance company’s summary judgment on whether they used an ATDS.  The facts were as follows:

The underlying facts in this case are detailed in our prior opinion,1 and the Court provides only a brief restatement based on undisputed facts from the record. Plaintiffs Henry Espejo (“Espejo”) and Faye Levins (“Levins”) (collectively, “Plaintiffs”) each brought class action suits against Defendant Santander for violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., actions which have since been consolidated. These claims arose when Santander utilized its Aspect Telephone System (“Aspect”) to make calls [*3]  to the Plaintiffs regarding outstanding auto loans. Santander utilizes Aspect in combination with a customer account management system called “My Supervisor.” The company uses “My Supervisor” to generate a customer list and then uploads the list into Aspect. Aspect has a dialer feature that dials phone numbers from a customer list using an algorithm to efficiently match available customer service agents to answered calls. The dialer only makes calls once a customer service agent logs-in and presses a button to indicate that they are available. On April 21, 2016, Santander filed a motion for summary judgment, partially on the grounds that Aspect’s dialer feature did not constitute an automatic telephone dialing system (“ATDS”), which is an essential element of the Plaintiffs’ TCPA claim. That same day, Santander moved the Court to stay the proceedings until the D.C. Circuit issued its ruling in ACA International v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018), a consolidated action that considered the validity of the Federal Communications Commission (“FCC”) rulemaking regarding the TCPA. On October 14, 2016, the Court denied Santander’s motions, but stated that it would “revisit any issues affected by [the ACA International] decision as needed, at [*4]  any time before the trial in this case.” On March 16, 2018, the D.C. Circuit issued its ruling in ACA International. Based on the decision, Santander renewed its motion for summary judgment on and moved the Court to reconsider its initial denial.

Judge Cocoras found that the TCPA was ambiguous and that the Aspect dialing system could be an ATDS.

Given Congress’s particular contempt for automated calls and concern for the protection of consumer privacy, the legislative history of the TCPA supports the Ninth Circuit’s position that the ATDS definition includes autodialed calls from a pre-existing list of recipients. To hold otherwise would exempt a “widely used” automated dialing technology from the purview of the TCPA, leaving consumers without recourse for the precise problems Congress already addressed. Id. at 14090. Because the Court adopts the interpretation of the ATDS definition that permits dialing pre-existing customer lists, Santander’s Aspect system is not exempt from the TCPA as a matter of law. Indeed, because Aspect automatically dials numbers from a set customer list, it falls within the definition of an ATDS.  . Next, the parties dispute the acceptable amount of human intervention for equipment to be deemed an ATDS. Santander suggests that a predictive dialer requiring any amount of human intervention cannot constitute an ATDS. The Plaintiffs take an opposing view, asserting that minimal human intervention is inevitable and does not place a particular equipment beyond [*23]  the TCPA’s reach. The Plaintiffs further suggest that ACA International should not alter the Court’s previous decision regarding human intervention because courts continue to assess the acceptable level on a case-by-case basis. The Court agrees with the Plaintiffs and reaffirms its previous decision with respect to human intervention. To reiterate, “[e]very ATDS requires some initial act of human agency—be it turning on the machine or pressing ‘Go.’ It does not follow, however, that every subsequent call the machine dials—or message it sends—is a product of that human intervention.” Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2014 WL 7005102, at *5 (N.D. Ill. Dec. 11, 2014); See also Marks, 904 F.3d at 1052-53 (“Common sense indicates that human intervention of some sort is required before an autodialer can begin making calls, whether turning on the machine or initiating its functions. Congress was clearly aware that, at the very least, a human has to flip the switch on an ATDS.”). Therefore, as a matter of functional practicality, some degree of human intervention is inevitable in any ATDS. Moreover, the statutory language reveals what Congress anticipated would be automatic—the dialing. “By referring to the relevant device as an ‘automatic telephone dialing system,’ Congress made clear that it was [*24]  targeting equipment that could engage in automatic dialing, rather than equipment that operated without any human oversight or control.” Marks, 904 F.3d at 1052 (citing ACA Int’l, 885 F.3d at 703 (“‘[A]uto’ in autodialer—or, equivalently, ‘automatic’ in ‘automatic telephone dialing system’—would seem to envision non-manual dialing of telephone numbers.”) (internal citations omitted)). Because predictive dialers engage in the automatic dialing of telephone numbers, the initial functionality of the machine need not be completely free of all human intervention. Santander’s Aspect system requires human intervention to the extent of uploading a pre-existing customer list and clicking a button to indicate a customer service agent’s availability. From there, Aspect’s dialer responds to the customer service agent’s availability and begins dialing numbers from the list based on a programmed algorithm. “Thus, according to Santander’s own description, its Aspect dialer—not the agents—makes the calls by dialing numbers from the uploaded list.” 1:11-cv-8987, Dkt. 215. This falls within the acceptable and inevitable amount of human intervention for an ATDS.