By Emily Faracca – On
Another TCPA Verdict on Predictive DialersAs much as it pains me to say this: don't get too comfortable with your predictive dialer software. The results of at least three TCPA cases have contradicted what we used to think was a growing number of cases giving us the green light on predictive dialers. But not so - it's looking like it's still up in the air.
Somogyi v. Freedom Mortg. Corp. & Sieleman v. Freedom Mortg. Corp.
The defendant in both cases, Freedom Mortgage Corp., requested the court stay any action pending the outcome of the FCC's Public Notice regarding the architecture and reach of the TCPA. The FCC has not yet clarified the definition of an ATDS as it relates to dialers calling from a list. Until then, Courts are filling in the gaps.
Their request to stay action was denied, and the court relied on Dominguez v. Yahoo!'s definition of an ATDS - any device with the ability to store phone numbers. The court concludes that dialing from a list of finite and individually-entered numbers qualifies as an ATDS. The reasoning in their own words: "the system selected the next number from among a population of hundreds of thousands of numbers belonging to existing customer, the selection of the next call is what matters, and it is random.”
The discrepancy, as pointed out by Nicole Y. Su, is that the court reads the phrase “using a random or sequential number generator” to mean “using a random or sequential number selection process.”
This decision comes after the Pinkus decision stating that dialing from a list of numbers is okay. This apparent contradiction is mind boggling to say the least.
Abante Rooter and Plumbing, Inc. v. Alarm.Com
To throw in another element of confusion, a Northern California District Court held that predictive dialers are subject to the TCPA after all. Alarm.com motioned for summary judgment regarding the claim that their software qualified as an ATDS, calling upon previous predictive dialer rulings. It was denied. According to Eric Troutman, this is the second decision to come out of Northern California holding that predictive dialer rulings are still subject to the TCPA.
What It Means for You
As promised, we update you about changes to TCPA trends. Unfortunately, the trends are often difficult to square away. A call made by a predictive dialer can either win you a summary judgment or a fine depending on your district - it's enough to make you go crazy. But don't do that, because hopefully, the FCC will clarify in the near future.