This month a Pennsylvania district court judge granted summary judgment in favor of a defendant accused of violating the Telephone Consumer Protection Act, finding that despite the fact that the defendant used a predictive dialer, that dialer was not an automated telephone dialing system, or “ATDS,” as required to establish liability.
In Smith v. Navient Solutions, LLC, plaintiff Gregory Smith co-signed a student loan for his daughter that subsequently went into default. Smith initially provided his cell phone number to Navient Solutions, the loan servicer, and consented to automated calls but revoked that consent nearly two years later. Smith claimed to have received 136 calls after allegedly revoking consent.
The TCPA, among other things, prohibits any person or entity from making any call to a cellular phone using an ATDS unless the call is made for emergency purposes or made with the prior express consent of the called party. The definition of an ATDS, however, has long been litigated between parties and challenged with the FCC.
In navigating the changing and complicated history of the TCPA, Judge Kim Gibson of the U.S. District Court for the Western District of Pennsylvania analyzed the D.C. Court of Appeals’ ruling in ACA International v. FCC and ultimately held that the predictive dialing device used by Navient does not qualify as an ATDS because it did not have the capacity to randomly or sequentially generate numbers to be called. Instead, the numbers had to be uploaded by the user.
As stated by Judge Gibson:
In some cases, predictive dialers may be ATDSs where some feature of the software enables them to randomly or sequentially generate numbers to be called. However, where a predictive dialer merely calls consumer numbers from a list that is separately created and uploaded onto the software, the predictive dialer itself is not generating any numbers to be called. In that situation, the predictive dialer is not an ATDS so long as it does not have the present capacity to randomly or sequentially generate numbers to be called. In sum, the Court finds that a predictive-dialing device is not an ATDS merely because it calls consumers from a preprogrammed list of numbers that was inputted into the device. Rather, the device itself must have the capacity to generate numbers.
The definition of an ATDS has been inconsistent among differing jurisdictions. Troutman Sanders will continue to monitor and report on important developments involving calling regulations.