July 5, 2022

Volume XII, Number 186

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July 05, 2022

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GETTING CLOSER: Judge Holding FN7 Dicta Issues Another Great ATDS Ruling–FIFO May Be Acceptable Dialing Sequence

I think it is safe to say that Chief Magistrate Judge Spero of the N.D. Cal is a great draw for defendants in TCPA ATDS cases.

he was the judge behind the outstanding decision finding fn7 to be dicta that reported on last week.

Well that case–Cole–was built upon the foundation of a slightly earlier decision he issued in Pascal v. Concentra, Inc., Case No. 19-cv-02559-JCS2021 U.S. Dist. LEXIS 239583 (N.D. Cal.  December 14, 2021).

While Cole dealt with the Vicidial system–a very popular open source dialer–the Pascal decision looks at a text platform–Textedly.

In Cole the numbers to be texted in the Textedly platform were stored in the caller’s SQL database. The numbers were assigned a sequential id number based upon the date the number was added to the system.

The Plaintiff argued that the use of the number generator to assign an ID was essentially the use of an RoSNG to create dialing sequence–a big no no under Facebook’s FN7.

But the Court disagreed and–since we now know CMJ Spero views Fn7 to be mere dicta–that’s no surprise.

In Pascal the court found that Facebook requires the use of an RoSNG to create phone numbers full stop. The Court finds that a platform that merely targets telephone numbers that were obtained in a non-random way is not an autodialer for the purposes of the TCPA.

Look, that’s a great ruling–but its only sort of useful. Many courts are going to flat disagree. fn7 sort of says something different and there’s no way around that.

But there’s an even better part of Pascal that is being overlooked and, of course, that’s where I come in.

The issue with applying Fn7 to the system at issue in Pascal is that the RoSNG isn’t actually determining dialing sequence. Rather dialing sequence is being determined by the date in which the numbers are being added to the system–i.e. this is a FIFO situation, not a RoSNG FN7 situation.

And while the Pascal court doesn’t fully unpackage this issue it detects and relies on it, even if at a visceral level:

 Moreover, even if the use of a random or sequential number generator to determine the order the messages would be sent could qualify a platform as an autodialer where the telephone numbers on the list were collected non-randomly, the definition would not apply to the facts here because it is undisputed that the numbers were stored and called in the same order they were uploaded or input into Textedly.

BOOM.

That’s a critical take away that will help even in courts that apply Fn7– Pascal gives us the VERY FIRST analysis as to why FIFO might be a safe dialing sequence even in jurisdictions that credit fn7 arguments.

As I have been saying it is absolutely critical to understand your dialer’s source code. If an RoSNG is being used to determine sequence you need to strip that code out or use a different dialer. Not every judge is going to view matters the way CMJ Spero does–although the ND Cal is looking pretty savory for TCPA defendants right now.

But if you’re looking for logic to apply in lieu of a RoSNG for prioritizing dialing lists think about FIFO following Pascal.

This stuff is obviously complex and cutting edge– 88% of lawyers likely missed this issue completely upon reading Pascal and no one is talking about it but me–so be sure to seek knowledgeable and tech-savvy counsel when testing dialer equipment or launching any new outreach to consumer cell phones.

© 2022 Troutman FirmNational Law Review, Volume XI, Number 354
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About this Author

Eric Troutman TCPA Lawyer Troutman Law Firm Orange County, CA
Founder

Eric J Troutman is known as one of the country’s prominent class action defense lawyers and is nationally recognized in Telephone Consumer Protection Act (TCPA) litigation and compliance. He has served as lead defense counsel in more than 70 national TCPA class actions and has litigated nearly a thousand individual TCPA cases in his role as national strategic litigation counsel for major banks and finance companies. Eric also helps industry participants build TCPA-compliant processes, policies, and systems.

Eric's perspective allows him to...

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