In Johnson v. Comodo Group, the United States District Court for the District of New Jersey denied the defendant’s motion for summary judgment on two key issues in a claim asserting violations of the Telephone Consumer Protection Act, finding that a predictive dialer qualifies as an automatic telephone dialing system under the statute and the TCPA’s prohibition against the use of prerecorded or artificial voice messages, including recorded messages that are played by a live caller on the called party’s voicemail.
Defendant Comodo Group, Inc., made sales calls on behalf of an affiliated company that is in the business of selling encryption keys that enable website owners to securely transfer data to and from their customers. Encryption keys of this type, known as Secure Sockets Layer (“SSL”) Certificates, contain information regarding their expiration dates and the identities of their users. Comodo used an automated program to search the internet for expiring SSL Certificates and added the users to a database from which it would place sales calls.
Plaintiff Michael Johnson alleges that during May and June 2016, Comodo called him seven times using an ATDS and left prerecorded messages on his voicemail on three occasions. Based on these actions, he asserts claims under the TCPA on behalf of himself and a nationwide class of people who received similar calls.
Comodo moved for summary judgment, arguing the telephone system that it uses is a predictive dialer that does fall within the definition of an ATDS. The statute defines an ATDS as “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.” 47 U.S.C. § 227(a)(1). Comodo argued, rather than producing numbers using a random or sequential number generator, a predictive dialer is a system that can store pre-programmed telephone numbers or receive numbers from a computer database and then call those numbers.
In denying Comodo’s motion, the Court noted that there is a split in authority on this issue, both across the nation and within the District of New Jersey; but it followed the Ninth Circuit’s decision in Marks v. Crunch San Diego, LLC, in determining that the predictive dialer used by Comodo qualifies as an ATDS under the TCPA.
Further, in addition to its argument regarding the calling system used, Comodo asserted that the messages it left do not violate the TCPA because the statute only prohibits prerecorded messages that are played by a computer or machine without human intervention, and played to a live person. Though during the calls at issue, a sales agent was on the line and pressed a button to play a message on Johnson’s voicemail. The Court rejected these arguments, holding that the statute does not make any distinction between prerecorded messages played by a human and those played by a machine. It further held that messages left on voicemail are subject to the TCPA in the same way as messages that played directly to the person called.
Although the District of New Jersey permitted Johnson’s case to go forward, its decision does not resolve the overall debate as to precisely what qualifies as an ATDS. We will keep monitoring and reporting on this issue as the law continues to evolve.