Posted by Chris Alarie on Thu, 06/10/2021 - 11:11
A District Court in South Carolina has issued a ruling in a Telephone Consumer Protection Act (TCPA) lawsuit that addresses one of the most important uncertainties in the wake of the Supreme Court’s decision in Facebook v. Duguid. At issue is whether or not predictive dialers fit within the narrow definition of an automatic telephone dialing system (ATDS) that SCOTUS adopted in its momentous decision two months ago.
The most straightforward reading of the Facebook decision would indicate that predictive dialers are not autodialers. However, some ambiguous language in footnote 7 of the decision has led some analysts to caution that lower courts could still find reason to subject predictive dialers to the TCPA’s autodialer restrictions. The South Carolina District Court assuages this pessimism to a significant extent with its decision in Timms v. Usaa Fed. Sav. Bank.
The dialing system at issue in this case is an Aspect predictive dialer. The plaintiff put forth the argument that the dialer calls numbers sequentially from a list but did not make the argument that it used a random or sequential number generator in its dialing process. The court found that the lack of random or sequential number generation disqualifies it from being an ATDS, essentially blunting the potential danger of footnote 7.
This is actually the second recent TCPA case to find that predictive dialers are not autodialers post-Facebook. A District Court in North Carolina issued a similar ruling last month in Barnett v. Bank of Am., N.A. While other courts could opt to decide differently, it is heartening to see that the early decisions on predictive dialers after Facebook are following the logical determination that predictive dialers that do not use random or sequential number generation are not autodialers.