Glasser v. Hilton Grand Vacations Co.

341 F.Supp.3d 1305

Melanie GLASSER, individually and on behalf of all others similarly situated, Plaintiff,

v.HILTON GRAND VACATIONS COMPANY, LLC., Defendant.

Case No: 8:16-cv-952-JDW-AAS

United States District Court, M.D. Florida, Tampa Division.

Signed September 24, 2018

Amanda J. Allen, Geoffrey E. Parmer, William Peerce Howard, The Consumer Protection Firm, PLLC, Tampa, FL, Timothy James Sostrin, Pro Hac Vice, Keith J. Keogh, Pro Hac Vice, Keogh Law, LTD, Chicago, IL, for Plaintiff.

Angela C. Agrusa, Pro Hac Vice, David B. Farkas, Pro Hac Vice, DLA Piper US, LLP, Los Angeles, CA, Lawrence D. Silverman, Sandra Jessica Millor, Akerman LLP, Miami, FL, for Defendant.

JAMES D. WHITTEMORE, United States District Judge

ORDER

BEFORE THE COURT are Defendant's Motion for Summary Judgment (Dkt. 98) and Plaintiff's opposition (Dkt. 104). Also before the Court are Plaintiff's Motion for Class Certification (Dkt. 91), Defendant's Response (Dkt. 93), and Plaintiff's Reply (Dkt. 94). Upon consideration, Defendant's Motion for Summary Judgment (Dkt. 98) is GRANTED . Plaintiff's Motion for Class Certification (Dkt. 91) is DENIED as moot.

Background

In this action alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. ("TCPA"), Plaintiff alleges that between October 16, 2013 and April 2, 2014, Hilton Grand Vacations Company, LLC used an automated telephone dialing system ("ATDS") to make telemarketing calls to her cell phone without her consent.¹ (Dkt. 1 ¶ 13). She brings this action on behalf of herself and all others similarly situated, seeking class action certification, injunctive relief, actual and statutory damages, and attorney's fees and costs.

Standard

Summary judgment is appropriate if Defendant shows "there is no genuine dispute as to any material fact and [it] is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a) ; Hickson Corp. v. N. Crossarm Co., Inc. , 357 F.3d 1256, 1260 (11th Cir. 2004) (moving party bears initial burden of showing, by reference to materials on file, that there are no genuine disputes of material fact that should be decided at trial) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The facts are viewed and reasonable inferences are drawn in the light most favorable to Plaintiff, the non-moving party. Scott v. Harris , 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). On the other hand, " ‘[i]f no reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and summary judgment will be granted.’ " Lima v. Fla. Dep't of Children & Families , 627 F. App'x 782, 785-86 (11th Cir. 2015) (quoting Beal v. Paramount Pictures Corp. , 20 F.3d 454, 459 (11th Cir.1994) ).

Automatic Telephone Dialing System

In its motion, Defendant contends that Plaintiff has not shown that it used an ATDS to make the calls to her cell phone, an essential element of a cause of action under § 227(b)(1)(A). (Dkt. 98, p. 3). More specifically, Defendant contends that it is entitled to summary judgment because the technology it used to call Plaintiff's cell phone, the Intelligent Mobile Connect system ("IMC System"), required human intervention before a call could be made, contrary to the statutory definition of an automatic telephone dialer system. (Id. at p. 12 ¶ 3). Defendant maintains that the undisputed facts show that before a call could be made, a customer's record, including, the customer's cell number, appeared on the agent's computer screen, and the agent then clicked on the "Make Call" button on the screen to initiate the call. Plaintiff counters that although Defendant's agents clicked on the "Make Call" button to initiate a call, that only placed the number in a queue to be called, and a computer actually dialed the number. According to Plaintiff, human intervention was therefore not required to dial the number. (Dkt. 104, pp. 2, 18).

The Undisputed Facts

Eric Beekman, Defendant's Senior Director of Customer Relationship Management and Contact Management Marketing, testified that calls were placed manually by employees clicking a "Make Call" button on the IMC System computer screen (the IMC Desktop Application). (Dkt. 118, Beekman Dep., at 82:17-23, 101:20-21, 102:21-22, 103:20-24). Those employees are referred to as "manual dialing marketing agents." (Id. at 78:20-21). When an agent clicks on the "Make Call" button, "the phone number will be attempted to be dialed" through the IMC System. (Id. at 102:2-22).

Rian Logan, a technical sales consultant with Genesys² , described the IMC System's capabilities. (Dkt. 119, Logan Dep., at 8:8, 12:1-4). According to Logan, that system was incapable of automatically launching calls. (Id. at 85:7-11, 128:17-25, 131:8-12). Rather, an "agent actually initiates the manual dial." (Id. at 46:3-4). According to Logan:

• The IMC System utilizes a business software automation tool called "Interaction Process Automation." (Id. at 20:24-25, 21:1-9, 21:19-21, 23:9-25, 24:1-25, 25:1-8).

• Interaction Process Automation handles the workflow function of retrieving and presenting a customer's record (name and phone number) to a console operator. (Id. at 24:15-21, 36:1-10, 68:2-8, 68:17-20, 129:19-24).

• Once the console operator receives a "work form" on their screen, i.e. , a number to dial, "[t]he console operator must click to dial." (Id. at 24:13-21, 46:12-23, 68:17-20, 129:17-21).

• When the "make call" button is pressed, a call is launched. (Id. at 46:12-23, 71:18-23, 72:3-4).

• "The media servers...then use call analysis to determine if it's a live speaker or not,...[it] will determine if it's a busy signal, an answering machine or live speaker....If it's a live speaker, its transferred to a waiting agent." (Id. at 24:21-25, 25:1-2).

• The calls are made through the Public Switched Telephone Network and technically categorized as Voice Over IP³ calls. (Id. at 23:9-20, 24:13-21, 57:4-7).

• The console operators are making "human-based" decisions as they "control the pace" of the calls and by "connecting available agents to people...." (Id. at 102:7-15, 103:2-15, 131:19-25).

• "If there are no available agents [and] you click the "make call" button, it will not make a call." (Id. at 112:1-2).

Accordingly, and as Logan explained, although these operators were "not ten-digit dialing" or "keying in all the 10 digits," they were manually clicking a button to initiate dialing. (Id. at 46:13-23, 74:6-7, 127:22-24).

Discussion

The basic function and defining characteristic of an ATDS is "the capacity to dial numbers without human intervention ." In Re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 18 F.C.C. Rcd. 14014, 14091 ¶ 132 (2003 FCC Ruling) (emphasis added). This defining characteristic of an ATDS resolves the dispute in this case. The undisputed facts demonstrate that human intervention was required before a cell number could be dialed by Defendant's system. Accordingly, the system is not, by definition, an ATDS under the TCPA.

The TCPA prohibits any person from "mak[ing] any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice...to any telephone number assigned to a...cellular telephone service." 47 U.S.C. § 227(b)(1)(A).⁴ To prevail on her TCPA claim, therefore, Plaintiff must show that Defendant called her cell phone using an ATDS. Her claim turns on whether Defendant's IMC System constitutes an "automatic telephone dialer system."

The TCPA defines an "automatic telephone dialer system" 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." § 227(a)(1)(A)-(B).⁵ This includes equipment that has "the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers." Id.

The FCC has, on numerous occasions, confirmed this definition. See In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 27 F.C.C. Rcd. 15391, 15392 ¶ 2 n.5 (2012 FCC Ruling) ; In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991 , 23 F.C.C. Rcd. at 566 ¶ 13 (2008 FCC Ruling). Most recently, on March 16, 2018, the FCC issued a ruling purporting to clarify and effectively expand the definition of an ATDS. See In the Matter of Rules & Regulations Implementing the Tel.Consumer Prot. Act of 1991 , 30 F.C.C. Rcd. 7961 (2015 FCC Ruling). However, that "effort to clarify the types of calling equipment that fall within the TCPA's restrictions" was set aside in ACA Int'l v. Fed. Commc'n Comm'n , 885 F.3d 687, 691-92 (D.C. Cir. 2018).⁶ The court concluded that the FCC's definition of an ATDS constituted an "unreasonably expansive interpretation of the statute." Id. at 692 ("The Commission's understanding would appear to subject ordinary calls from any conventional smartphone to the Act's coverage, an unreasonably expansive interpretation of the statute.").⁷

Relevant here, ACA Int'l left intact earlier FCC rulings that "the ‘basic function’ of an autodialer is to dial numbers without human intervention:"

For instance, the ruling states that the "basic function" of an autodialer is the ability to "dial numbers without human intervention." 2015 Declaratory Ruling, 30 FCC Rcd. at 7973 ¶ 14 ; id. at 7975 ¶ 17. Prior orders had said the same. 2003 Order, 18 FCC Rcd. at 14,092 ¶ 132 ; 2008 Declaratory Ruling, 23 FCC Rcd. at 566 ¶ 13. That makes sense given that "auto" in autodialer—or, equivalently, "automatic" in "automatic telephone dialing system," 47 U.S.C. § 227(a)(1) —would seem to envision non-manual dialing of telephone numbers.

But the Commission nevertheless declined a request to "clarify[ ] that a dialer is not an autodialer unless it has the capacity to dial numbers without human intervention."

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