In Morgan v. On Deck Capital, No. 3:17-CV-00045, 2019 U.S. Dist. LEXIS 147757, at *3-4 (W.D. Va. Aug. 29, 2019), Judge Moon denied summary judgment to a TCPA defendant who argued that ‘manual mode’ of a dialer system disqualified the system from being an ATDS.  The facts were as follows:

Defendant On Deck Capital is an online lender that offers financing to small businesses, and calls individuals who it believes to be interested in a small business loan. (Dkt. 35-1 ¶ 8). Plaintiff owns a small business, Piedmont Hauling, LLC, and has previously filed TCPA claims against other companies. (Dkt. 35-2 ¶¶ 4, 17). Plaintiff originally expressed interest in a loan during a conversation with Floyd Consultancy on June 16, 2017. (Dkt. 35 ¶ 5). Floyd Consultancy is a company that identifies individuals interested in obtaining a small business loan, then provides the individual’s contact information to Leads2Results, a company that in turn provides the individual’s information to On Deck Capital. (Dkt. 35-3 ¶¶ 6-17). After the call, Floyd Consultancy passed Plaintiff’s contact information to Leads2Results, which in turn passed it to On Deck. (Dkt. 35-3 ¶¶ 21-22). On June 19, 2017, On Deck called Plaintiff at approximately 1:35 P.M. (Dkt. 74 at 2). There is no dispute that the call at issue was initiated by an On Deck Sales Department representative using the “Manual Touch Mode” dialing domain on a telephone system designed by a company called “Five9.” (Dkt. 74 at 5; dkt. 36 at 2). On Deck Capital moves for summary judgment, arguing that there is no genuine dispute that the “Manual Touch Mode” domain does not qualify as an ATDS covered by the TCPA. Plaintiff, on the other hand, argues that the Manual Touch Mode domain is just one aspect of a larger system capable of automatic dialing and thus qualifies as an ATDS.

Judge Moon held that it still could be an ATDS-based call.

Most courts recognize that in addition to having the capacity to “store and produce telephone numbers to be called using a random or sequential number generator,” an ATDS must have the ability to “dial numbers without human intervention.” See, e.g., Glasser v. Hilton Grand Vacations Co., LLC, 341 F.Supp.3d 1305, 1308 (M.D. Fla. Sept. 24, 2018) (noting this test, citing FCC rulings left intact by D.C. Circuit’s ruling in ACA International); Somogyi v. Freedom Mortgage Corporation, 2018 WL 3656158, at *6 (D. N.J. Aug. 2, 2018) (noting the “human intervention” test). “[C]ourts have consistently held that dialing systems where all calls are initiated manually do not qualify as ATDSs.” Id. Thus, dialing systems that require callers to click dialogue boxes or other features to initiate calls have been deemed to require human intervention and not qualify as ATDSs. See, e.g., Pozo, 2016 WL 7851415, at *4; Hatuey v. IC System, Inc., 2018 WL 5982020, at *7 (D. Mass. Nov. 14, 2018) (finding dialing system did not qualify as an ATDS because “a human ‘clicker agent’ . . . must manually click a button to place a call”). Moreover, dialing systems that require the caller to manually enter the telephone number to be called are generally found not to qualify as ATDSs. See, e.g., Wesley v. Universal Recovery Corp., 2016 WL 9138057, at *2 (C.D. Ca. Cot. 12, 2016) (finding that dialing [*18]  system did not qualify as an ATDS where the system required a caller to “pick up the telephone handset and dial the 10-digit number to place the call”).  There is no dispute that the specific call in question was placed on a telephone in “Manual Touch Mode.” In this mode, Salesforce—On Deck’s “account record database” that stores telephone numbers—automatically populates an agent’s next phone number, the agent must manually key in the populated number, and the call will not be initiated unless the phone number is correctly input by the agent and the agent clicks “Dial.” (Dkt. 36 at 6-7; dkt. 74 at 6-8, 19). There is no dispute that the call to Plaintiff came from On Deck’s Sales Department, and that the Sales Department has access to a domain that includes only the “Manual Touch Mode” and the “Preview Mode,” which operates similarly to Manual Touch Mode by presenting an agent with a prospective customer’s file, populating the number once the agent clicks “Call Customer,” and then only making the call once the agent manually keys in the number or clicks each digit using a mouse. (Dkt. 36 at 8). There is also no dispute that two of On Deck’s other departments—collections and customer service—use the Five9 Virtual Contact Center (“VCC”) domain, which includes dialing modes such as the “Power Mode,” “Progressive Mode,” and “Predictive Mode” that do have the capacity to store and produce numbers using a random or sequential number generator and then automatically dial such numbers (i.e., almost certainly would qualify as ATDSs). (Dkt. 74 at 5-6; dkt. 75 at 5-6).  In essence, then, the parties do not dispute that the call made to Plaintiff was made in a dialing mode that, in and of itself, would not qualify as an ATDS, since agents using “Manual Touch Mode” are required to input the number and click “Dial.” What the parties dispute is whether the Manual Touch Mode domain is its own “system” or, alternatively, simply one domain in a larger system that includes other modes that do qualify as ATDSs (i.e., the “VCC” domain and its Power, Progressive, and Predictive dialing modes). If the former is true, then the call to Plaintiff was not made on a “system” with the “capability” for automatic dialing as required by the TCPA. If the latter is true, then the call Plaintiff received —although completed on a dialing mode that does not involve automatic dialing—may still violate the TCPA [*20]  because it occurred on equipment that is part of a larger system that has the capacity for automatic dialing.  On Deck presents evidence that the VCC and Manual Touch Mode telephones use separate hardware, separate software, a separate server, separate settings, and are administered separately, and therefore constitute separate systems. (See, e.g., dkt. 75-5 15-16 (O’Sullivan Decl.); dkt. 75-4 at 5 (Nelson Depo.); dkt. 75-3 52-61 (Sorini Report)). On Deck also presents evidence that at the time of the June 2017 call to Plaintiff, members of the Sales Department in the New York office from which the call was placed sat in their own separate workspace and were not able to log into domains other than the Manual Touch Mode domain. (See, e.g., Dkt. 75-4 at 8, 13 (Nelson Depo.); dkt. 75-3 58 (Sorini Report)). And, as discussed above, it is undisputed that the call to Plaintiff occurred in June 2017, was made by a Sales Department agent working in the New York office, and was made using the Manual Touch Mode dialing system, which does not allow automatic dialing and requires human intervention such as dialing and clicking to place a call.  Plaintiff in turn offers several pieces of evidence to present its characterization of Manual Touch Mode as part of an overall system that includes the capacity for automatic dialing. First, Plaintiff points to Snyder’s proposed expert testimony that Manual Touch Mode is “simply a software function within the overall dialing system equipment” used by On Deck, and that this overall system includes other modal software functions such as the Power and Progressive modes that do have the capacity for automatic dialing. (Dkt. 74 at 10; dkt. 74-3 ¶¶ 39-52).  Second, Plaintiff points to deposition testimony providing that “[r]egardless of department, each OnDeck agent is equipped with nearly identical hardware—a laptop, two monitors, mouse, keyboard, and headset” and that each laptop is loaded with “the Five9 dialer software, a program called ‘Salesforce,’ and a program called the ‘Five9 Plus Adapter for Salesforce.'” (Dkt. 74 at 6). More importantly, Plaintiff cites testimony that “[m]ultiple domains can be accessed from the same physical workstation” if the user has login information for that module. Id.  Finally, Plaintiff points to deposition testimony that a select few On Deck employees with logins to multiple modules can quickly and easily switch between domains (for instance, from Manual Touch Mode into another mode that allows automatic dialing). (Dkt. 74-2 at 72-73). Again, Plaintiff does not contend that this was how he was called, nor does Plaintiff need to contend as much. But Plaintiff’s evidence does establish the following: 1) an On Deck agent called Plaintiff from a workstation equipped with Salesforce, the “Five9 Plus Adapter for Salesforce,” and Five9’s Manuel Touch Mode; 2) an On Deck employee with the correct login could access other modules in the Five9 ecosystem from that workstation; 3) among these are modules with the capacity to store and produce numbers using a random or sequential number generator and then automatically dial such numbers; and that these various modules together constitute a single system. Together, this at least creates a genuine dispute of fact that the call to Plaintiff was made from a device with the “present capacity to function as [an] autodialer.” Dominguez on Behalf of Himself v. Yahoo, Inc., 894 F.3d 116, 119 (3d Cir. 2018). Thus, because a genuine dispute of fact remains in this litigation, Defendant is not entitled to summary judgment.