Wednesday, April 1, 2020

TCPA Update: Court Rules Predictive Dialer Not an ATDS

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Richard B. Newmanhttp://www.hinchnewman.com
Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on advertising law, Internet marketing compliance, regulatory defense and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

Courts continue to grapple and split on what qualifies as an “automated telephone dialing system.”  This creates uncertainty for telemarketers about potential liability exposure in a time when TCPA lawsuits continue to be filed in large numbers and FTC lawyers are aggressively enforcing the Telemarketing Sales Rule.

Some courts have since held that a predictive dialer is not an ATDS unless it hast he present capacity to store and produce telephone numbers randomly and sequentially.

For example, the Northern District of Illinois recently ruled that because a predictive dialer dials from a fixed list of telephone numbers and does not utilize a random or sequential number generator, the technology does not constitute an ATDS.

In July 2019, the Northern District of Texas joined the party.

In Adams v. Safe Home Security, Inc., the plaintiff pursued relief under the TCPA, alleging that the defendant phoned her numerous times to collect on a past-due debt following a suppression request.  The court analyzed whether an ATDS applies to predictive dialers based upon the plain language of the statute.

The TCPA defines an ATDS as “equipment which has the capacity – (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.”

In the end, the court ruled that ‘using a random or sequential number generator modifies both “to store” and “to produce.”  In doing so, it held that predictive dialers fall outside the definition of an ATDS.

A win for telemarketers.

Richard B. Newman focuses on advertising compliance and federal agency litigation at Hinch Newman LLP.  Follow him on Twitter at FTC lawyer.

Informational purposes only. Not legal advice. Attorney advertising.

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