Temporarily Disabling Predictive Dialers Does Not Provide Protection from TCPA Liability

Summary

A temporarily-disabled predictive dialer is an ATDS, and is subject to the TCPA prohibition on calls to cell phones without the prior express consent of the called party.  The focus has been on whether the equipment has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.

Article

People often ask: If a predictive dialer is in “preview mode”, is it still subject to the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227(b)(1), prohibition on automatic telephone dialing system (“ATDS”) calls made to cell phones without the prior express consent of the called party?

To begin, the term “automatic telephone dialing system” means equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.

A “temporarily-disabled predictive dialer” means a predictive dialer used in a mode (sometimes referred to as “preview mode”) where each live caller must authorize each call placed by entering at least one keystroke, but which can be reactivated to dial in a mode without human intervention for each call.

Because the TCPA prohibits ATDS calls to cell phones without prior express consent of the called party, many believe they can simply disable the predictive-dialing capability and continue to call cell phones without the fear of liability.  However, this is not the case.

The FCC, the Ninth Circuit, and most other district court cases have found that a temporarily-disabled predictive dialer is an ATDS.  Courts have focused on whether the equipment has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.  If the equipment has the capacity, even if it is not presently active or used, most cases find it an ATDS.

In 2003, the FCC ruled a predictive dialer is an ATDS:

We believe the purpose of the requirement that equipment have the “capacity to store or produce telephone numbers to be called” is to ensure that the prohibition on autodialed calls not be circumvented.  Therefore, the Commission finds that a predictive dialer falls within the meaning and statutory definition of “automatic telephone dialing equipment” and the intent of Congress.

18 FCC Rcd. 14014, 14092-14093 (July 3, 2003). 

In Satterfield v. Simon & Schuster, Inc., the plaintiff signed up for a free ringtone service from one company, but then later received an unsolicited text message advertisement from another company, which had outsourced its promotional campaign to a third-party and subsequently obtained plaintiff’s cell phone number.  Plaintiff alleged a violation of the TCPA for unsolicited text messages to her and other class members’ cell phones by an ATDS.  The court held:

When evaluating the issue of whether equipment is an ATDS, the statute’s clear language mandates that the focus must be on whether the equipment has the capacity “to store or produce telephone numbers to be called, using a random or sequential number generator.” Accordingly, a system need not actually store, produce, or call randomly or sequentially generated telephone numbers, it need only have the capacity to do it.

569 F.3d 946, 951 (9th Cir. 2009). 

Satterfield has been consistently followed in many other cases.  See Meyer v. Portfolio Recovery Assocs., LLC, 2012 U.S. App. LEXIS 26708, *11 (9th Cir. 2012); Pimental v. Google Inc., 2012 U.S. Dist. LEXIS 28124, *5-7 (N.D. Cal. 2012); Ibey v. Taco Bell Corp., 2012 U.S. Dist. LEXIS 91030, *6-7 (S.D. Cal. 2012); Connelly v. Hilton Grand Vacations Co., 2012 U.S. Dist. LEXIS 81332, *14 (S.D. Cal. 2012); Dobbin v. Wells Fargo Auto Fin., Inc., 2011 U.S. Dist. LEXIS 63856, *4 (N.D. Ill. 2011); Nelson v. Santander Consumer USA, Inc., 2013 U.S. Dist. LEXIS 40799, *8 (W.D. Wis. 2013).

Therefore, a temporarily-disabled predictive dialer is an ATDS, and is subject to the TCPA prohibition on calls to cell phones without the prior express consent of the called party.  The FCC, the Ninth Circuit, and most other district court cases have found that a predictive dialer is within the meaning of an ATDS.  The focus has been on whether the equipment has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.  If the equipment has the capacity, even if it is not presently activated and/or used, most cases have considered it an ATDS.