By Emily Faracca – On
The recent outcome of a case solidifies what constitutes an ATDS while providing insight into a violation of the FDCPA.
The Plaintiff: Bria Maddox
The Defendant: CBE Group, Inc.
When Bria Maddox ceased making payments on her Comcast bill, Comcast referred her account to CBE Group, Inc. for collection. Comcast provided CBE with her cellphone number. Between Dec. 22, 2016 and Feb. 24, 2017, a total of 120 calls were made to Maddox's cellphone. The calls were all made between the hours of 8:30 a.m. and 8 p.m., and no more than 5 calls were made on any given day. CBE did not call the plaintiff more than five consecutive days and did not leave a voicemail message in attempts to contact her.
More importantly, all the calls CBE made were done using CBE's manual clicker application (MCA.) The MCA requires human intervention - a manual click - to initiate a call.
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Now, let's get back into it.
The technology used by CBE contained the following features:
- Calls are initiated by CBE agents
- The system does not use any predictive or statistical algorithm to engage in predictive dialing
- Does not have the capacity to auto-dial or produce numbers to be called using a random or sequential generator
Before filing a lawsuit, Maddox placed three calls to CBE, but she hung up before speaking with any employee. The only time CBE was able to make verbal contact was on Jan. 11 when Maddox answered a call from CBE. She did not deny she owed the debt, nor did she indicate she could not pay the debt at that time. Instead, she stated she did not want to pay the debt "right now", and that she intended to open her Comcast account again.
The agent informed her that she would not be able to reopen another Comcast account without resolving the debt. It was then Maddox asked for CBE's contact information. A little more than a month later, Maddox sent a letter stating her intent to take CBE to court.
Maddox brought two claims against CBE, alleging they violated both the FDCPA and the TCPA.
According to the TCPA, cellular-phone subscribers who receive autodialed phone calls without having given prior express consent to such calls are entitled to a damages remedy. Maddox used this as the basis of her TCPA claim.
The FDCPA claim Maddox filed was founded on a rule that prohibits collection agencies to harass, oppress or abuse any person in connection with the collection of a debt. Maddox alleged that by causing her cellphone to ring repeatedly, CBE violated the FDCPA.
Reaction by the Defendant:
CBE filed for a summary judgment in both claims. They were confident in their TCPA compliant manual dialer, and they believed their call volume clocked in an appropriate amount without qualifying as harassment.
Reaction by the Court:
The court agreed to summary judgments for ONLY the TCPA matter. According to the Federal Rule of Civil Procedure, "the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact, and the movement is entitled to judgment as a matter of law."
1. The TCPA Claim
In the matter of TCPA compliance, the court proceeded using information from similar debt collection court cases, such as McGinity vs. Tracfone Wireless.
In cases of similar nature, courts have stood by a stipulation laid out in FDCPA documents that an autodialer must be defined as:
...equipment that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.
It is also common to draw upon the absence or presence of a 3-second pause when a call is answered to determine whether an auto-dialer was used.
Because, as stated above, Comcast provided CBE with a cellphone number, it was clear to the court that the dialer did not retrieve Maddox's phone number using a random generator.
CBE solidified their case by arguing that there is no evidence Maddox was called using an ATDS. Maddox was unable to present any evidence, other than that the dialer used by CBE was a "modification" of an ATDS. Here, the court referenced the very well known case ACA International v. Federal Communications Commission.
ICYMI: This case partially overturned a previously held interpretation of an ATDS by an FCC order in 2015: that any dialer that had a capacity to autodial without human intervention qualified as an ATDS. The ACA argued that this would qualify any smartphone, with the addition of software, could potentially become an autodialer by that definition.
Throwing all the legal jargon aside, here's what you need to know: CBE's software required human intervention, and it did not use any kind of predictive or statistical algorithm to engage in predictive dialing or minimize waiting times.
2. The FDCPA Claim
The FDCPA prohibits debt collectors from engaging in harassment and oppression. For obvious reasons.
Maddox alleged that by causing her phone to ring repeatedly and continuously, CBE's intent was annoyance, abuse, and harassment.
According to court documents, there are many debt collection court cases floating around that have attempted to interpret words like annoy, abuse, harass, oppress, etc.
It can be a precarious subject to broach, so the court relied on undisputed facts:
- 120 calls in just over two months
- A few calls made at unusual times such as before 9 a.m.
- On certain occasions, more than three calls in a span of less than 5 hours
Would you define this as harassment? It is certainly a matter of interpretation, at least as far as the judge was concerned. As a result, the claim was allowed to proceed to a jury trial.
As you can assume, enough evidence was presented about CBE's manual dialer to protect them from liability.
The presiding judge ruled that the platform used by CBE did NOT meet the definition of an ATDS.
The issue of the FDCPA violation, however, will be brought before a jury. The judge himself could not determine whether the pattern of calls made by CBE could be interpreted as harassment.
What You Need to Know:
First, you need a manual dialing solution. If this case doesn't solidify it for you, what will?
CBE Group, Inc. protected themselves with their manual dialing software. They used their own software, but at Arbeit, we know there are some agencies that don't have that kind of capacity. That's why we created Click - our manual dialing solution that can integrate easily into your agency's flow.
Second, be mindful of the amount of calls you are putting out per hour, per day, per month. It will usually be up to a jury to interpret what qualifies as harassment and left up to personal interpretation; you may not get lucky. Luck favors the prepared - stay on top of the number of calls you are making so you don't come close to crossing that line!
TL;DR: A district court in Georgia ruled in favor of a collection agency using a manual dialing solution. Did you know Arbeit has a manual dialing solution that can help you with a favorable court ruling? Click here!