ATDS ANARCHY - The Five9 Dialer is Driving TCPA ATDS Trouble (Again) and Here is a Bit More Info On that SCARY New ATDS Case Everyone’s Talking About
Monday, March 20, 2023

Ok, so the Dame covered this story last week but I think I need to say a few words on it because there is interesting.

Recall that in the Third Circuit following Panzarella basically every component connected to a dialer is considered in assessing whether a system as the “capacity” to perform store or produce telephone numbers using a random or sequential number generators.

While that sounds awful, the Panzarella court also requires that the capacity to perform those functions be actually utilized in connection with a call campaign to trigger the TCPA.

So, it seems, that under Panzrella everything is an ATDS and nothing is an ATDS–all systems will have the capacity to engage in the regulated functions when functionalities are viewed through the lens of integrated software components–which stretch as far as the eye can see on any given operating system–but NO ONE, it seems, uses those functionalities in connection with a typical dialing campaign.

No one, that is, except for Five9 according to a Plaintiff’s expert. And that can be a MASSIVE setback for Five9 (again.)

As the Dame correctly noted, Five9 is already something of a TCPA legend considering the disastrous ruling back in the Morgan case concluding that not only might the Five9 system be an ATDS, but even its manual software option is still part of the same system–meaning even manual Five9 clicks still trigger the TCPA.

But that decision came out before Facebook and before Panzarella. These days concepts like “manual” and “click to dial” are obsolete, and only human selection vs. ROSNG usage matter.

And that’s what makes Smith v. Vision Solar Case NO. 20-2185, 2023 WL 2539017 (E.D. Pa. March 16, 2023) so worrying.

The Court found a triable issue existed not only as to whether Five9 has the capacity to call using an ROSNG, but also as to whether that capacity was actually used to call in the given case.

In arriving at this conclusion the court credited the Plaintiff’s expert testimony. Here it is for your consideration:

[Defendant’s Counsel]: Based on what you reviewed in this case, did the Five9 system that was used to place the calls
at issue use a sequential number generator?
Mr Hansen: Yes.
[Defendant’s Counsel]: Okay. What’s that based on?
Mr. Hansen: It used it first to load the list into – – or put the list into memory. It used it again to call the list as well.
Hansen Depo., ECF 86, Ex. 2 19:10-17

On the one hand, this is pretty thin. But it is also sufficient to create a triable issue–at least in the Court’s view.

So what does this mean for users of Five9.

Well, it means at least one Court has found that Five9 MIGHT be an ATDS–even in the most restrictive Third Circuit Court of Appeals footprint.

And you put this ruling together with Morgan and you REALLY need to consider NOT using Five9 as your manual dialer if you are using it as a predictive solution.

And I know Five9 is SUPER popular so this is a headache. But… if you have eyes you have to see. Considering using a different system for NON CONSENTED campaigns.

More broadly, Smith highlights the continued ATDS anarchy in TCPAWorld. Risk continues to exist across the country here–in addition to the enhanced risk created by state-level mini-TCPAs–so always best to assure you have consent before leveraging any form of automated technology.


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