District Of Nevada Applies ACA Int'l V. FCC, Grants Summary Judgment In Favor Of Defendant On TCPA Claim

Author:Ms Amanda K. Blackmon, Ethan G. Ostroff and David M. Gettings
Profession:Troutman Sanders LLP
 
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The District of Nevada recently applied the D.C. Circuit's decision in ACA International v. FCC and granted summary judgment in favor of the defendant on plaintiff's Telephone Consumer Protection Act claim. Specifically, the Court held in Marshall v. The CBE Group, Inc. that CBE's phone system does not qualify as an automatic telephone dialing system, commonly referred to as an "ATDS."

Plaintiff Gretta Marshall filed suit against CBE, a third-party debt collector, alleging that it violated the TCPA and the Fair Debt Collection Practices Act through its collection efforts related to her outstanding bill. Marshall alleged that CBE's agents used an ATDS to contact her in violation of the TCPA. CBE places calls using a Manual Clicker Application ("MCA"), requiring the call agent to click a bullseye on a computer screen to place a call. When a CBE agent clicks the bullseye, a call is sent through a cloud-based connectivity pass-through, LiveVox, and then the CBE agent is connected with the person to whom the call is placed.

In analyzing CBE's "communication infrastructure," the Court stated that in light of the ACA v. FCC decision, it would apply the statutory language defining an ATDS, resulting in a focus on whether CBE's phone equipment has the capacity to produce or store phone numbers to be called using a random or sequential number generator. The Court noted that the overwhelming authority held that "point and click" dialing systems, used in unison with cloud-based pass-through services, did not qualify as ATDSs due to the human intervention required to place the call. Applying this rationale, the Court found that CBE agents who were required to click the bullseye were "integral to initiating outbound calls." This finding weighed in favor of finding that the MCA, used with LiveVox, was not an ATDS.

Further, the Court dismissed Marshall's allegations that LiveVox, the cloud-based pass-through, placed the calls and qualified as an ATDS. Marshall argued that because LiveVox could perform call progress analysis (such as maintaining...

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