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Is an Outbound Dialer Covered by the TCPA If It Doesn't Dial "Randomly or Sequentially"?

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December 12, 2013

Is an Outbound Dialer Covered by the TCPA If It Doesn't Dial "Randomly or Sequentially"?

By Tracey E. Schelmetic, TMCnet Contributor

Companies that engage in outbound telephone marketing understand that there are rules they have to follow. Most significantly, they must follow the rules of the Telephone Consumer Protection Act (TCPA), which guards consumers against nuisance calls, among other things. But as with any legislation that covers technology issues, the TCPA is beginning to show its age.

When it comes to the use of outbound dialing equipment, the TCPA defines dialers as follows: “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.”

So what happens if a company is using a dialer that does not dial randomly or sequentially, such as a predictive dialer in preview mode or a manual dialer? Can they be sued under the terms of the TCPA?

At least a few companies have argued that they cannot. According to an essay by attorney Gregory N. Blase of law firm K&L Gates, courts asked to interpret the TCPA have reached different conclusions in cases where dialers were not being used to dial numbers randomly or sequentially. In some cases, the courts have ruled that the TCPA applies even when the dialers were supposedly not being used in this way.

“In one case, Hunt v. 21st Mortgage Corp., a federal judge in Alabama reasoned that a dialing system is not covered by the TCPA unless it has the “present” capacity to auto-dial,” writes Blase. “There, the defendant produced evidence to suggest that the dialer at issue lacked software necessary to allow it to dial numbers randomly or sequentially.  The court concluded that the equipment would not be considered an auto-dialer if that were true and ordered discovery on that question. In another case pending in California state court, the judge disposed of a TCPA case upon the finding that the dialer lacked the ability to dial numbers randomly or sequentially when the calls in question were made.”

While it sounds like deliberately misinterpreted weasel words – of course, we might say, the TCPA is supposed to protect Americans from nuisance calls, and technicalities about whether the numbers were dialed in order or not are absurd – it’s not the court’s job to make assumptions. The cases point out a flaw in the TCPA that the Federal Communications Commission (FCC (News - Alert)) would be wise to clarify, given how much time and money is spent on telemarketing abuse litigation, and how thin Americans’ patience is wearing for abusive nuisance calls. 

Edited by Blaise McNamee

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