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September 2016 TCPA Compliance Monitoring Report
Since the Federal Communications Commission (“FCC” or “Commission”) released its Omnibus Order in July 2015, the so-called human intervention test has taken on heightened importance for Telephone Consumer Protect Act (“TCPA”) litigants. In the Omnibus Order, the Commission clarified its expansive interpretation of autodialer under the TCPA, potentially expanding TCPA risk for organizations making informational or telemarketing calls. However, the FCC also noted that a key feature of an autodialer is the capability to dial numbers without human intervention. The Commission said it would evaluate how human intervention applies to dialing equipment on a case-by-case basis, and it left courts to do the same.
Last month, in Manuel v. NRA GRP., LLC, a Pennsylvania district court found that a caller pressing a button to indicate when he or she is ready to make another call while using a predictive dialer does not constitute human intervention. In Manuel, the defendant relied on a predictive dialer that dialed numbers prior to an agent indicating availability to make a call. If the dialer reached an answering machine, it automatically discontinued the call. When an agent was ready for a new call, the agent would press a button to indicate the agent’s availability, and the dialer would then connect the agent with the already initiated call. Used in this configuration, the court concluded “it is clear that Mercury Dialer initiates calls in predicative mode without human intervention.”
Conversely, last November in Estrella v. Ltd Financial Services, LP, a Florida district court found that a “point and click” feature for dialing involved sufficient human intervention. In Estrella, a Citibank account agent used his or her mouse to select among the phone numbers associated with an account and initiated the call by clicking on the selected number. According to the court, at most, this showed “that the calls were placed manually with the use of human intervention through a ‘point and click function.’”
The decision in Manuel also seems to suggest that a point and click feature may not violate the TCPA. The court cited Estrella in contrast to how the defendant used its predictive dialer in Manuel, and in dicta, the court suggested that several other modes of the defendant’s dialer may have involved human intervention. In “power mode” or “preview mode” the predictive dialer allowed an agent to initiate a call to the next number on a preloaded list by pressing F4 or to call specific phone numbers loaded to the system, respectively. While the court did not evaluate these modes for purposes of the human intervention test, the court said it “perceives a significant difference between predictive mode, on the one hand, and power and preview modes, on the other.”
As district court cases, neither Manuel nor Estrella are binding in other districts, and from a risk management perspective, some questions remain as to how a court would deal with certain configurations of a dialer. Allowing calling agents to select which number they call next, such as in Estrella or the preview mode described in Manuel, appears to offer strong support that human intervention in the calling process precludes TCPA liability, and use of a dialer in predictive mode like the one at issue in Manuel seems unlikely to satisfy the human intervention test.
However, there remains a middle ground, exemplified by the power mode described in Manuel, that would present an edge case for the human intervention test. Notwithstanding the court’s comments suggesting a significant difference between the Manuel dialer as used in predictive mode and power mode, a distinction could also be made between the use of the dialer in power mode and the use of the dialer in preview mode or the calls made in Estrella. In Estrella and as the Manuel dialer would be used in preview mode, a caller affirmatively selects which number to dial and clicks on the number or presses a button to initiate the call. On the other hand, in power mode, the dialer moves through a preprogrammed list of numbers, dialing each number after (as opposed to before in predictive mode) an agent presses a button indicating he or she is ready to make the next call. A court could determine that such a level of involvement by a caller is insufficient to meet the human intervention test.
If you have any questions about the TCPA’s human intervention test or how the TCPA could impacts your business, please do not hesitate to contact Seth Williams at slw@commlawgroup.com, Jane Wagner at jlw@commlawgroup.com, or Nate Hardy at njh@commlawgroup.com.
