In a memorandum opinion, the U.S. District Court for the Central District of California recently held that the defendant’s manual use of a desktop telephone was not subject to liability under  the new Federal Communications Commission (FCC) “potential capacity” standard for an automatic telephone dialing system (ATDS).

In Frejya v. Dun & Bradsteet, Inc., et al, the plaintiff alleged Dun & Bradstreet violated the Telephone Consumer Protection Act (TCPA) by using a prohibited ATDS without the plaintiff’s consent and conducting a telephone solicitation while the plaintiff’s number was listed on the national do-not-call registry.

Dun & Bradstreet maintains a database of more than 235 million businesses globally. It initiates calls to gather information about unlisted businesses as part of its “Business Investigation” program and engages third parties to conduct these investigations. One of Dun & Bradstreet’s third-party investigators contacted the plaintiff, a sole proprietor using her cellular phone for her business, with an Avaya 4610 desktop telephone. The defendant claimed that third-party investigators “manually press[ed] by hand each digit of the unlisted business’s phone number on the dialing pad of their regular desktop telephones.”

The FCC’s July 10, 2015 Order modified the long-standing definition of an ATDS—a device which can “dial numbers without human intervention” and “dial thousands of numbers in a short period of time”—to include “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.” As we have previously commented, the FCC’s Order arguably allows the “potential capacity” of equipment to create TCPA liability despite the equipment’s actual configuration and use. While the Order has invited a more case-by-case approach, it has also reinforced that the “basic function of [an ATDS], however, has not changed—the capacity to dial numbers without human intervention.”

The Frejya Court held that “undisputed facts demonstrate that plaintiff was not called from an ATDS.” While the court noted that the Avaya 4610 could “be used to receive calls from an autodialer if the agent’s computer had the appropriate software, the agent had proper login credentials, and the dialer was appropriately configured,” it also found that the uncontroverted testimony proved that the phone could not, by itself, be used as an autodialer. The plaintiff did not emphasize the FCC’s expanded definition in her amended complaint nor in her statement of genuine disputes in opposition to the defendant’s motion for summary judgment.

The Central District of California is not the first to weigh in on the interaction of the traditional “human intervention” standard and the Order. In Derby v. AOL, Inc., the Northern District of California refused to hold that the Order invalidated earlier TCPA case law. The Court emphasized that the Order “does not suggest that a system that never operates without human intervention constitutes an ATDS under the statute.”

Ballard Spahr’s TCPA Task Force assists clients in navigating the complex and challenging issues that arise under the TCPA. The Task Force, which comprises regulatory attorneys and litigators, provides counsel on TCPA compliance and avoiding TCPA liability, including reviewing policies and practices and helping to design mobile text message and prerecorded and autodialed call campaigns. It also assists clients in handling scrutiny from regulators, including preparing for examinations, responding to investigations, and defending against enforcement actions. Task Force members also defend clients against TCPA class or individual actions.

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).

For more information, please contact Consumer Financial Services Group Practice Leader Alan S. Kaplinsky, TCPA Task Force Chair Mark J. Furletti, Daniel JT McKenna, or Brian J. Slagle.

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