TCPA: Dialers Must Have “Present Capacity” According to a Recent Decision

Recently, a federal district court presented a new, narrowed definition of the “automatic telephone dialing system” under the Telephone Consumer Protection Act (TCPA).  According to this definition, a system must have the present capacity to store or produce and call numbers from a number generator at the time the calls are being made in order to meet the TCPA definition of an “automatic telephone dialing system.”  In Hunt v. 21st Mortg. Corp., No. 2:12–CV–2697–WMA, 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013), a consumer sued a debt collector, alleging that the debt collector’s calls to the consumer’s cell phone were in violation of the TCPA. A dispute regarding the definition of “automatic telephone dialing system” was raised during the course of the proceedings.  According to the definition in the TCPA, an “automatic telephone dialing system” is equipment that has the capacity to store or produce telephone numbers to be called, using a sequential or random number generator, and the capacity to dial such numbers.  The debt collector claimed that no automatic dialing was used for the telephone calls made to the claimant, and therefore the equipment storage capability was irrelevant.  The consumer responded that even if the equipment was not actually used, but if it was possessed and available, “it’s mere capacity for automatically storing or producing telephone numbers was the functional equivalent of actually using the equipment, and therefore, would prove a violation of the TCPA.”

While examining the definition of the “automatic telephone dialing system”, the court recognized that the “capacity” of a dialer to store or produce telephone numbers to be called, using a sequential or random number generator, was previously found to bring a dialer under the TCPA’s coverage.  The court noted, however, that the telephone systems in those previous cases were fully equipped and ready to automatically dial numbers, and therefore had the required “capacity” to meet the definition.  In the present case, the system was incapable of automatic dialing in its present state.  Consequently, the court held that to meet the TCPA definition of an “automatic telephone dialing system”, a system must have “a present capacity, at the time the calls were being made, to store or produce and call numbers from a number generator” (emphasis added).  Whenever a defendant has such a system, it can be liable under §227(b)(1)(A) even if the system does not use the automatic dialing capability, but it cannot be held liable if in order to achieve that capability, a substantial modification of the system would be required.

For more information on this subject and to learn more about TCPA, contact Joe Messer at jmesser@messerstrickler.com, or you may call Joe at (312) 334-3440.