In Hatuey v. IC System, Inc., Civ. No. 1:16-CV-12542-DPW, 2018 WL 5982020 (D.Mass. Nov. 14, 2018), Judge Woodlock granted summary judgment to a debt collector on FDCPA and TCPA claims. On the FDCPA claim, the Court held that a cease and desist with respect to one account did not operate with respect to a second account.
Although both the calls in December 2016 and in February 2015 were made to the same phone number, they were associated with different accounts, and therefore with different debts owed by different entities to different companies. Consequently, even though ICS did contact Mr. Hatuey after being asked to stop, it did not do so in conjunction with the same account or with the same debt. The fact that ICS did not identify the two accounts as both listing the same incorrect phone number is not sufficient to show an intent to “harass, oppress, or abuse.” At most, this evidences that ICS was careless in cross-referencing the phone numbers in its database, but it does not evidence that ICS acted with ill will. See Kenny v. Mercantile Adjustment Bureau, LLC, 2013 WL 1855782, *3 (W.D.N.Y. 2013)(holding that “[n]o inference of intent to annoy, abuse, or harass can reasonably be drawn” when a debt collector contacts the same consumer multiple times, but with respect to different accounts related to different debts). In the absence of record evidence indicating that ICS continued to call Mr. Hatuey with respect to a separate debt after being asked to stop with respect to that specific debt, a reasonable jury could not find that ICS acted with the intent to “harass, oppress, or abuse” by calling Mr. Hatuey in 2016 after being asked to stop the previous year with respect to another debt.
The Court then held that no ATDS was used due to a process of human intervention.
What distinguishes an ATDS, according to both the FCC and several federal courts, is the capacity of the system “to dial telephone numbers from a list without human intervention.” Graggv. Orange Cab Co., Inc., 995 F. Supp. 2d 1189, 1192 (W.D. Wash. 2014); see also Johnson v. Yahoo!, Inc., 2014 WL 7005102, *3 (N.D. Il. 2014); Luna, 122 F. Supp. 3d at 940; Davis, 36 F. Supp. 3d at 225. “Dialing systems which require an agent to manually initiate calls do not qualify as autodialers under the TCPA.” Pozo v. Stellar Recovery Collection Agency, Inc., 2016 WL 7851415, *3 (M.D. Fla. 2016). . . Even if I were to accept a broad reading of the FCC’s definition of an ATDS as a system which may draw phone numbers from a database, rather than only through a random or sequential number generator, there would be no genuine issue of material fact on Mr. Hatuey’s TCP claim. Both Mr. Hatuey and ICS agree that the relevant calls were placed using a system known as LiveVox HCI, and that this system requires a human “clicker agent” who must manually click a button to place a call. This alone disqualifies the LiveVox HCI system as an ATDS under the TCPA. See, e.g., Pozo, 2016 WL 7851415 at *3-4 (holding that the identical software – the LiveVox HCI, is not an ATDS because it uses a “clicker agent”); Schlusselberg v. Receivables Performance Management, LLC, 2017 WL 2812884, *3 (D. N.J. 2017)(same); Jenkins v. mGage, LLC, 2016 WL 4263937, *5 (N.D. Ga. 2016) (holding that a similar software which requires an individual to click to initiate a call is not an ATDS). Mr. Hatuey has not adduced any evidence that ICS used any other kind of software to place its calls to him. He has also not produced any LiveVox HCI software manuals or similar instructions guides that could show that the system, in fact and in derogation of previous findings in the case law, does place calls automatically. Given the state of the summary judgment record, no reasonable jury could conclude that ICS used a system that does not require human intervention to place the telephone calls at issue. Because the record demonstrates as a matter of law that it did not, the phone calls Mr. Hatuey seeks to put at issue here fall outside the scope of the TCPA’s prohibition. Consequently, ICS is entitled to a judgment as a matter of law. Accordingly, I will grant summary judgment in favor of ICS on the TCPA claim.