In Smith v. Stellar Recovery, Inc. 2017 WL 955128, at *3 (E.D.Mich., 2017), Judge Murphy granted summary judgment to a TCPA defendant based on the fact that its dialer system required human intervention.
II. Predictive Dialer Objection. In her next objection, Smith argues that Stark admitted that the automated call distributor (ACD) system had ‘predictive dialer functionality‘ which makes the ACD system a ‘predictive dialer.‘ ECF 72, PgID 1972 (quoting ECF 38-2, PgID 573). And since the FCC has ruled that ‘a predictive dialer constitutes an automatic telephone dialing system,‘ Smith concludes that the ACD used in Stellar’s HCI system is an automatic dialer under the TCPA. ECF 72, PgID 1971 (citing In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling, 23 F.C.C. Rcd. 559, 566 ¶ 12, 2008 WL 65485 (F.C.C. Jan. 4, 2008)). Smith argument fails, however, to identify a specific error in the Report. And, as the Report explained, the HCI system is characterized by one key factor that separates it from autodialers: it requires human intervention—the clicker agent—to launch an outgoing call. ECF 71, PgID 1945; see also ECF 38-2, PgID 567–68 (Stark’s testimony explaining that only when an ‘agent chooses to launch the call‘ can the HCI system make an outgoing call). Since the ‘basic function‘ of an autodialer is the capacity to dial phone numbers ‘without human intervention,‘ and the HCI system lacks that capacity, the HCI is not an autodialer. 2015 TCPA Order, 30 F.C.C.R. at 7973 (citation omitted). Based on persuasive authority from federal courts around the nation, the statutory text, and the binding regulations of the FCC, the Report correctly concluded that the HCI system is not an autodialer under the TCPA. III. Components Objection Smith contends that the components of the HCI system combined to form an autodialer. She argues generally that the HCI system cannot function without its components—a campaign database, an automatic call distributor, and a media server pool—and that these components have autodialing capacity. Again Smith fails to object to a specific portion of the Report. In any event, the Report addressed and rejected Smith’s argument. Stellar’s HCI system lacked the capacity to dial ‘without human intervention.‘ 2015 TCPA Order, 30 F.C.C.R. at 7973 (citation omitted). The ACD system forwards a number to the clicker agent, who makes the decision to launch the call by clicking a mouse or pressing an enter key. ECF 38-2, PgID 568. The HCI system cannot place a call without the clicker agent’s approval. Id. Smith fails to identify any specific error in the Report’s conclusion that would change the outcome on review.