• District Court Holds the Use of a Predictive Dialer Violates Telephone Consumer Protection Act
  • September 5, 2011 | Authors: David N. Anthony; John C. Lynch
  • Law Firms: Troutman Sanders LLP - Richmond Office ; Troutman Sanders LLP - Washington Office
  • On August 16, 2011, the Northern District of Illinois held that the Telephone Consumer Protection Act (TCPA) prohibits the use of predictive dialing software on equipment that dials telephone numbers without human intervention. The court also rejected the argument that the TCPA does not apply to debt collection. 

    Plaintiffs alleged that they received telephone calls and text messages on their cell phones from the lender’s automatic telephone dialing system in violation of the TCPA. The statute prohibits the use of an “automatic dialing system” to make calls to certain telephone numbers, including cellular telephone numbers, in the absence of emergency or the prior express consent of the called party.

    The lender argued that its predictive dialing software did not constitute an “automatic telephone dialing system” within the meaning of the TCPA because it did not randomly generate the numbers to call as provided in the definition of an “automatic telephone dialing system.” Instead, the defendant argued its predictive dialing software dials the numbers from the lender’s database of existing telephone numbers and, thus, does not violate the TCPA.

    Citing the Federal Communications Commission’s (FCC) final orders on this point, the court rejected the defendant’s argument. The court held that, in its 2003 and 2008 orders, the FCC concluded that to exclude predictive dialers from the TCPA coverage would be contrary to the intent of Congress to ensure that the prohibition on autodialed calls not be circumvented.

    The court also rejected the defendant’s argument that the TCPA applies only to telemarketing, not debt collection. The court found that while certain TCPA provisions apply only to “telephone solicitations” and consequently do not apply to debt-collection calls, the prohibition on the use of autodialers to call a wireless number found in section 227(b)(1)(A)(iii) applies regardless of the content of the call.