An Alabama federal court recently ruled that the limits imposed by the Telephone Consumer Protection Act (TCPA) on the use of autodialers applied only to phone systems that had the “present capacity” to make autodialed calls at the time the challenged calls were made. The court made the ruling in a decision granting the plaintiff’s motion seeking to inspect a telephone system used by the defendant at the time it was alleged to have made illegal autodialed calls to the plaintiff.

The TCPA generally prohibits autodialed or precorded, non-emergency calls to wireless numbers without the called party’s “prior express consent.” (See our prior legal alert for a discussion of the change to the TCPA rules that, effective October 16, 2013, will require the called party’s “prior express written consent” for autodialed or prerecorded telemarketing calls to wireless numbers.) In his complaint, the plaintiff alleged that the defendant had made calls to him in violation of the TCPA. As part of his discovery, the plaintiff sought to inspect the telephone system that had been in use at the time the allegedly unlawful calls were made. (The defendant had replaced the system before the litigation but kept it in storage.)

The defendant sought to block the plaintiff’s motion to compel the inspection, arguing that it made all calls manually. The court rejected that argument based on the TCPA’s definition of an “automatic telephone dialing system,” which refers to a system’s capacity to make autodialed calls. As a result, the court ruled that the plaintiff was entitled to inspect the system at issue to determine whether it had the “present capacity” to make autodialed calls. The court also ruled, however, that the defendant’s system only had the requisite “present capacity” if, at the time the challenged calls were made, the system was capable of making autodialed calls without the need for a substantial modification or alteration.

Ballard Spahr's Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs). In addition to having vast experience in defending TCPA lawsuits, the Group has counseled a number of clients on establishing autodialing and monitoring protocols.

For more information, please contact CFS Practice Leader Alan S. Kaplinsky at 215.864.8544 or, John L. Culhane, Jr., at 215.864.8535 or, or Mark J. Furletti at 215.864.8138 or



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This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.



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