A Predictive Dialer System operates from a list of phone numbers, automatically dials multiple numbers simultaneously and directs the calls to live agents based on predictions about when the agent will likely be available to handle the call. If the consumer answers, the system directs them to an agent. If the agent is unavailable, it often drops the call.
What are the risks?
The Telemarketing Sales Rule (TSR) expressly prohibits telemarketers from abandoning outbound calls. The call is considered “abandoned” if it does not connect to a Live Agent within 2 seconds. An Abandoned Call Safe Harbor allows for no more than 3% of calls to be abandoned, but some restrictions apply.
Are cell phones considered a predictive dialer?
There has been no clear or consistent guidance from the FCC or the courts as to whether or not a cell phone is considered a predictive dialer. TCPA compliance on this issue depends entirely on specific district court rulings for specific jurisdictions.
Adams v. Safe Home Security, Inc.
In this case, the U.S. Northern District of Texas Court read the TCPA such that a Predictive Dialer is not considered an ATDS unless it stores phone numbers that are generated randomly or sequentially or produces numbers randomly or sequentially.
This is in contrast with the Ninth Circuit decision in Marks v. Crunch San Diego, LLC, which held that predictive dialers qualified as ATDS if they merely had the capacity to store or produce numbers sequentially, whether or not they actually did so.