Whether an iPhone has the capacity to become an automatic dialer and if that should be considered in light of new TCPA automatic telephone dialing system (ATDS) cell phone restrictions is the subject of one case in Alabama.
In the past year I have reviewed at least a dozen dialer diagrams which my clients are considering adopting to comply with the new TCPA automatic telephone dialing system (ATDS) cell phone restrictions.
In the face of potentially catastrophic class action liability, as well as active TCPA plaintiffs’ attorneys, I have recommended a conservative course focusing on the FCC’s statement that the hallmark of an ATDS is the ability to dial without human intervention, as well as the Satterfield opinion that it is the “capacity” to dial without human intervention that matters, not whether that capacity is actually used in a given call. Thus, “preview” mode, where operators temporarily turn off a dialer’s predictive dialing capacity, is not sufficient to call cell phones without express consent because the dialer still has the capacity.
It has, however, been my opinion that a dialer is not an ATDS if it cannot dial without human intervention absent a software or hardware change. I am confident that my smartphone, my computer, and probably even my Bluetooth car could be modified with enough software and hardware to fall within the definition of ATDS.
On September 17th, however, a trial court in Alabama ruled in favor of a defendant which argued this very issue. Hunt v. 21st Mortgage Corp., 2013 U.S. Dist. LEXIS, 132574, *10-11 (N.D. Ala. September 17, 2013).
The plaintiff argued that defendant’s system could be an ATDS if certain software was added. The court rejected the argument holding that:
The problem with this reasoning is that, in today’s world, the possibilities of modification and alteration are virtually limitless. For example, it is virtually certain that software could be written, without much trouble, that would allow iPhones “to store or produce telephone numbers to be called, using a random or sequential number generator, and to call them.…”
The court, therefore, held that, to meet the TCPA definition of “automatic telephone dialing system,” a system must have a present capacity, at the time the calls were being made, to store or produce and call numbers from a number generator. Id. at *11.
Although this case is limited to that district in Alabama, it is, to my knowledge, the first federal case to consider the question, and since the opinion is very logical, it is unlikely that other courts would disagree with the opinion absent abusive behavior by the defendant in a future case (e.g. fraud, etc.).
This case is an important protection for companies seeking to comply with the new FCC rules which go into effect on October 16, 2013.