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Predictive Dialer Technology Didn't Violate TCPA in Wells Fargo Case

TMCnews Featured Article


June 29, 2011

Predictive Dialer Technology Didn't Violate TCPA in Wells Fargo Case

By Linda Dobel, TMCnet Contributor


While ASA International, the Association of Credit and Collections Professionals, is seeking to loosen laws that limit the methods collections agency can use to pursue debtors, others are finding loopholes in the law that work to their advantage. Case in point is the ruling last week in Chicago where a federal court dismissed a claim that call center agents working on behalf of Wells Fargo (News - Alert) used predictive dialer technology to contact the granddaughter of plaintiff Dolores Hart via her cell phone,  in an effort to collect on a car loan.


According to an article last week in the Courthouse News Service, Delores Hart entered into a retail installment contract with Wells Fargo in 1996 when she purchased a car for her granddaughter. 

When payments apparently got behind, the article says, "Wells Fargo call center agents contacted plaintiffs in an attempt to recover the overdue payments" and hired other defendants "to collect the debt and repossess the car." The claim says not only that “Wells Fargo uses a predictive dialer called the 'Conversations System' to communicate with customers," but also that a “predictive dialer is a type of automatic telephone dialing system that uses generated, stored, or otherwise entered phone numbers to automatically make outgoing telephone calls." At that point, the article explained, the predictive dialer system will forward calls where contact has been achieved to live call center agents.

Because the calls in this case were to cellphones, the position of the plaintiff was that Wells Fargo was in violation of the Telephone Consumer Protection Act (TCPA) which bans "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) [by] using any automatic telephone dialing system."

However, after an expert for the plaintiffs conceded that while the desktop telephones the agents used to call the plaintiffs are integrated with the predictive dialer system, they can also be used to dial manually when the agents aren’t logged into the universal server.

Wells Fargo countered that the calls made to the cellphones of the plaintiffs were not dialed using the predictive dialer system, and produced computer records that proved that they were instead manually dialed.

Although the plaintiffs said the computer printout records Wells Fargo produced were the equivalent of hearsay, U.S. District Judge Matthew F. Kennelly admitted the use of the computer records "under the 'business records' exception to the hearsay rule."  The Courthouse News Service report explained, “Under evidentiary law a printout is admissible, even if not kept in the ordinary course of business, so long as the underlying data was so kept.”

Consequently the judgment in this case was for the defendant, finding that there was no evidence that Wells Fargo’s predictive dialer technology was used to make contact via cell phone. The Courthouse News Service reported that the summary judgment concluded, "no jury reasonably could find... that Wells Fargo employees called plaintiffs' cell phones using equipment which has the capacity to auto dial."


Linda Dobel is a TMCnet Contributor. She has been an editor in the contact center space for more than 25 years, and has the distinction of being the founding editor of Customer Inter@ction Solutions (CIS) magazine. To read more of her articles, please visit her columnist page.

Edited by Jamie Epstein







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