Court Confirms ATDS Need Not Dial Numbers in a Random or Sequential Manner Under the TCPA

By Richard NewmanJune 4, 2014

On May 30, 2014, the U.S. District Court for the Northern District of Illinois held that a predictive dialer that dialed phone calls from a stored list without human intervention was an automated telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (Sterk v. Path, Inc., N.D. Ill., No. 1:13-cv-02330, 5/30/14).

This ruling clarifies that an ATDS need not dial numbers in a random or sequential manner under the Telephone Consumer Protection Act (“TCPA”).  The TCPA defines an ATDS 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.”

The dispute here centers around a claim that Mr. Sterk received an unsolicited text message from Path, Inc., advertising its social media site in violation of the TCPA.  Following limited discovery, the parties moved for summary judgment on the issue of whether the text was sent via an ATDS.

In its opinion, the court stated that final decisions of the Federal Communications Commission do not receive controlling weight in interpreting the TCPA.  The FCC determined that a predictive dialer, making calls from a database and predicting when they will be answered and when a telemarketer will be available to handle the call, is an ATDS in its 2003 TCPA rules. According to those rules, the most notable characteristic of an ATDS is not the ability to dial random or sequential numbers, but rather the ability to “dial numbers without human intervention.”

Defendant’s equipment sent messages from an uploaded list.  Defendant argued that “human intervention” came into play when its users chose to upload their phone contacts to the list.  The court did not agree, stating that such actions related to the collection of numbers, not to the dialing of numbers.

The court also disagreed with Path’s argument that the FCC's 2012 TCPA rules contained a “random or sequential number generator” requirement.  The language cited merely reiterated that the equipment must have the capacity to generated random or sequential numbers, not that it was actually used in that fashion, the court said.

Information conveyed in this article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.

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