May 24, 2022

Volume XII, Number 144

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May 23, 2022

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THE OTHER SHOE DROPS: Court Refuses to Dismiss TCPA ATDS Claim Because Dialing Sequence Determined by RoSNG

I know I’m supposed to be napping, but I was just sneaking out when this huge (bad) decision crossed my desk. (You know it always happens…I leave, big TCPA news.)

So last week I reported on a case holding that Facebook’s Fn7 is just dicta and devices that use a RoSNG to determine dialing sequence do not trigger the statute.

Well prepare to have whiplash all over again.

Today we have a case that directly holds the opposite– FN7 is binding and holds that any system that uses an algorithm to automatically determine dialing sequence is per se an ATDS.

Eesh.

Look folks, the Czar has been living in this space for 12 years. I know this stuff inside and out. This back and forth is exactly what I expected to see on Fn7. Trust me when I say more of this seesaw battle is coming.

I’ve been ahead of this from the start. That’s why I keep telling everyone–dialing sequencedialing sequencedialing sequence. (and Human Selection systemsHuman Selection systemsHuman Selection systems.)

In McEwen v. Nra of Am. & Infocision, No. 2:20-cv-00153-LEW, 2021 U.S. Dist. LEXIS 242273 (D. Me. December 20, 2021) the court allowed an amended complaint to be filed finding that an amendment claiming the caller’s system was an ATDS would not be futile.

The Defendant challenged that the allegations of the complaint did not demonstrate random calling. The Court seemed to agree–but randomness of telephone numbers didn’t matter:

That InfoCision initially acquires phone numbers from its clients or third-party venders, does not bear on whether InfoCision’s auto-dialer qualifies as an ATDS.

Uh oh.

While many recent cases have looked at where the numbers come from in assessing ATDS usage and stopped, the McEwan case finds the issue to be flat irrelevant.

You see where this is headed.

The Court continues:

Facebook made clear that the TCPA defines an ATDS in disjunctive form: a device must either store telephone numbers using a random or sequential number generator or produce numbers using a random or sequential number generator. Thus a device that calls phones numbers from a “preproduced list” may still be an ATDS, so long as it “use[s] a random [or sequential] number generator to determine the order in which to pick” the numbers from the list or otherwise stores the list of numbers using a random or sequential number generator. Id. at 1172 n.7.

A stone cold articulation of the Plaintiff’s dream interpretation of Fn7. Any device that uses an RoSNG to determine dialing sequence is an ATDS.

But wait. It gets worse.

So, so much worse:

Plaintiff’s allegations, if true, describe just such a device: InfoCision maintains one or more lists of phone numbers, which are automatically plucked from the list using an algorithm and robotically dialed in the order in which they are picked.

WOAH.

Dialing in the order in which numbers are picked by an algorithm is sufficient to trigger ATDS usage?

Why TCPAWorld? Why?

Show me a dialer whose campaign list isn’t picked by an algorithm. Sure the algorithm might be intelligently designed based upon campaign parameters and business rules.. but it is always still an algorithm. So now, any system that dials automatically from a list where the order is determined by campaign rules is potentially an ATDS–at least at the pleadings stage.

Ridiculous.

McEwan is–without question–the worst ATDS case yet following Facebook. It directly adopts the plaintiff’s bar’s read of Fn7–that RoSNG usage to determine dialing sequence equates with ATDS usage. And it goes even farther–holding that any automatic selection of numbers on a list triggers an inference of ATDS usage. Sounds a lot like Florida.

And to think, the original McEwan fueling–one of the first following Facebook–was actually a pretty big win for the defense bar. Well that just evaporated.

Unbelievable.

I hate to part ways with you for the year this way TCPA.World. But hopefully all of you find a Human Selection dialer under your tree this year.

Now I really am going off to hibernate.

Happy Solstice TCPAWorld.

© 2022 Troutman FirmNational Law Review, Volume XI, Number 355
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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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