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What is a predictive dialer?
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?
Expert analysis following the Facebook decision has generally held that predictive dialers are likely to fit outside of the narrow ATDS definition. However, there is some possibility that lower courts may interpret SCOTUS’s decision in such a way as to continue to hold predictive dialers to the TCPA’s ATDS restrictions.
A different source of risk for predictive dialers relates to their functionality that sometimes causes calls to be dropped. The 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.
Case Study
In one of the first cases post-Facebook, a district court ruled that an Avaya predictive dialer did not fit the narrow definition of ATDS because “the numbers chosen for the calls are selected from a pre-existing list created based on criteria from the dialer administrators, rather than by random or sequential number generators.”