An ATDS is More Than a Beep and a Pause

TCPA Automatic DialerA District Court in Arkansas just drew a line in the sand.  An automatic telephone dialing system (“ATDS”), it held, is more than hearing “a beep and a pause.”  And, yes, human intervention really does matter.

The Court in Brice Goad v. Censeo Health, LLC., No. 3:15CV00197 JLH, 2016 WL 2944658 (E.D. Ark. May 19, 2016) granted the defendant’s motion for summary judgment on the plaintiff’s Telephone Consumer Protection Act (“TCPA”) claims where the defendant “presented evidence that its telephone system requires human intervention to function” and the plaintiff’s “evidence [did] not establish that the telephone system has the capacity to be an autodialer.”  Id. at *3.

The defendant’s evidence established that its employees “manually dial each call by pressing a button for each digit in the telephone number.”  Id. at *2.  The computer system “prompts the employees to dial certain numbers which are displayed to the employee.”  Id.  The computer system “has no dialing mechanism and is not connected to the telephone system used to place the calls.”  Id. at *1.  Upon completion of the call, the “employee enters the outcome of the call into the computer program before the program displays another number.”  Id. at *2.  These facts were sufficient to establish that the defendant’s “telephone system requires human intervention to function.”  Id. at *3.

The plaintiff countered that the telephone system has the capacity to be an autodialer because documents from the phone system’s manufacturer, Cisco Systems, “show that Cisco’s telephone systems have the capacity to generate numbers and dial them without human interaction” and because the plaintiff “heard a beep and a pause at the outset of many of the calls.”  Id. at *2.  The Court held the Cisco documents, obtained from Cisco’s website, were inadmissible hearsay and, in any event, the plaintiff failed “to match [the defendant’s] telephone system with the system that the online documents describe.”  Id. at *3.  The “beep and pause” testimony was similarly unavailing because “[n]o evidence in the record shows that a beep and pause means an autodialer was being used to make the call.”  Id.  The Court therefore concluded that plaintiff’s evidence “did not establish that the telephone system has the capacity to be an autodialer”  Id. at *3.

This decision is helpful in at least two respects: 1) it affirms the importance of human intervention in a post-Omnibus environment that has predominantly minimized the role of human intervention as an ATDS factor; and, 2) it requires plaintiffs to produce more than superficial evidence of an ATDS (e.g., hearing a “beep and a pause”) to survive a defendant’s MSJ.

Scott Goldsmith

Scott Goldsmith

Scott brings the tenacity of a former prosecutor to his representation of clients in high-stakes commercial litigation and class action defense. Having tried over twenty cases through final jury verdict, and over one hundred fifty evidentiary hearings, Scott understands that effective advocacy requires creativity, composure, and thorough preparation.

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