The Lawletter Vol 44 No 1
The Telephone Consumer Protection Act (“TCPA” or the “Act”) makes it unlawful “to make any call . . . using any automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii).
In Maes v. Charter Communication, No. 18-cv-124-jdp, 2018 WL 5619199 (W.D. Wis. Oct. 30, 2018), the United States District Court for the Western District of Wisconsin recently considered whether a predictive dialer constituted an autodialer (an automatic dialing system) under the TCPA. In that case, the telemarketer called the plaintiff using a predictive dialer, a piece of equipment used in call centers to automatically dial phone numbers and connect representatives to customers that answer the phone. When the plaintiff answered phone calls from the telemarketer, he heard silence before the phone system connected him with a representative. The plaintiff then proceeded to sue the telemarketer under 47 U.S.C. § 227(b)(1)(A)(iii), which prohibits making “any call . . . using any automated telephone dialing system . . . to any telephone number assigned to a . . . cellular telephone service.”
In order for the plaintiff to prove a claim under the TCPA, the court explained that the plaintiff must establish three elements: (1) the defendant placed a call to the plaintiff’s cell phone (2) using an autodialer (3) without the plaintiff’s consent. The telemarketer moved to dismiss on the grounds that the plaintiff could not satisfy the Act’s definition of autodialer because he failed to allege that the telemarketer used a device that has the capacity to dial “random or sequential” phone numbers. The Act defines “automatic telephone dialing system” 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.” Id. § 227(a)(1).
When Congress enacted the TCPA, it directed the Federal Communications Commission (“FCC”) to prescribe regulations implementing the Act's requirements. Id. § 227(b)(2). Pursuant to this mandate, the FCC has construed the statutory term “automatic telephone dialing system” to include systems which—like so-called predictive dialers—have the capacity to dial stored numbers without human intervention. See 18 F.C.C.R. 14014, 14091-93 (2003); 23 F.C.C.R. 559, 566-67 (2008); 27 F.C.C.R. 15391, 15392 n.5 (2012).
Relying on FCC order(s), the Maes court denied the telemarketer’s motion to dismiss and held that a predictive dialer is an autodialer, even if the device does not dial random or sequentially generated numbers. The court explained:
To prove his claim under the TCPA, Maes must establish three elements: (1) Charter placed a call to Maes's cell phone; (2) using an autodialer; (3) without Maes's express consent. 47 U.S.C. § 227(b)(1)(A)(iii). Maes alleges that Charter called his cell phone multiple times, after he explicitly told Charter not to call him. Each time Maes answered, he heard a period of silence before he was connected with a Charter representative. Dead air after answering the phone is an indicator that the caller is using a predictive dialer, Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 18 FCC Rcd. 14014, ¶ 8 n.31, so it is plausible that Charter used a predictive dialer to call Maes. Because a predictive dialer is an autodialer under the TCPA, Maes states a claim for relief.
Maes, 2018 WL 5619199, at *5.
However, it should be noted that there remains a split of authority on this issue and other courts have not recognized the FCC rules regarding autodialers. See, e.g., Johnson v. Yahoo!, Inc., No. 14 CV 2028, 2018 WL 6426677 (N.D. Ill. Nov. 29, 2018) (available only on Westlaw) (service that an Internet service provider used to cause a text message to be sent to a consumer was not an “automatic telephone dialing system” as required to support a TCPA claim, where the system at issue did not have the capacity to generate random or sequential numbers to be dialed but, rather, dialed numbers from a stored list).