A federal judge in Massachusetts has granted summary judgment in favor of a defendant that was accused of violating the Fair Debt Collection Practices Act and the Telephone Consumer Protection Act by calling a phone number that had been reassigned to an individual other than the intended recipient of the telephone calls.
The plaintiff — Josie Hatuey — obtained a cell phone through his place of employment, and received a number of phone calls from the defendant, which was seeking to contact Brian O’Neill. The number and frequency of the calls was in dispute between the plaintiff and the defendant, although on a few occasions, the plaintiff alleged hearing what he believed to be a computer-generated voice on the other end of the line.
A copy of the ruling in Hatuey v. IC System can be accessed by clicking here.
The plaintiff alleged the defendant violated Section 1692d of the FDCPA because the calls were intended to “annoy, abuse, or harass” him. The judge ruled that the volume and frequency of the calls were not intended to annoy, abuse, or harass the plaintiff. During a deposition, the plaintiff claimed he was contacted multiple times per week by the defendant, but could not offer any proof to substantiate the claim.
“Even drawing all reasonable inferences in favor of Mr. Hatuey, this volume and pattern of phone calls does not raise the inference of an intent to harass. It only suggested that ICS sought to get in touch with the correct debtor,” wrote Judge Douglas Woodlock in his ruling.
In granting summary judgment on the TCPA claim, Judge Woodlock ruled the software used by the defendant to make the calls that the plaintiff received were not made by an automatic telephone dialing system, thus, not in violation of the TCPA.
“Even if I were to accept a broad reading of the FCC’s definition of an ATDS as a system which may draw phone numbers from a database, rather than only through a random or sequential number generator, there would be no genuine issue of material fact on Mr. Hatuey’s TCP claim. Both Mr. Hatuey and ICS agree that the relevant calls were placed using a system known as LiveVox HCI, and that this system requires a human “clicker agent” who must manually click a button to place a call. This alone disqualifies the LiveVox HCI system as an ATDS under the TCPA,” Judge Woodlock wrote.
