Reed Smith Client Alert

Authors: Judith L. Harris

Complying with the TCPA just keeps getting more and more challenging, even as the risk of noncompliance continues to rise; but, FCC, take note: if you don’t provide unambiguous guidance soon regarding what constitutes an automatic telephone dialing system (“autodialer”) under the TCPA, you might find yourself left out of the discussion.

In a facially encouraging order issued October 3, Orange County Superior Court Judge Ronald Bauer granted summary judgment to defendant Credit Management LP in a TCPA case involving allegations that, in attempting to collect a debt, defendant called plaintiff Cynthia Stockwell more than 100 times, on her cell phone, using an autodialer, without her prior express consent. Stockwell v. Credit Management, L.P., Docket No. 30-2012-00596110. The court’s decision seems to have been based almost solely on the strength of an uncontroverted Declaration submitted by Credit Management’s Director of Compliance and Quality Assurance, Nelson Wilson. Parroting, practically verbatim, the definition of an automatic telephone dialing system contained in the TCPA itself, Mr. Wilson simply asserted in his Declaration that the equipment used to call plaintiff “does not store or produce telephone numbers to be called using a random or sequential number generator, does not have the capacity to store randomly or sequentially generated telephone numbers and does not dial randomly or sequentially generated telephone numbers.”

Ignoring briefing regarding how the quoted phrase has been interpreted by other courts and the expert agency charged with TCPA enforcement (the FCC), Judge Bauer, in granting summary judgment on behalf of defendant, merely stated that the statutory definition of an automatic telephone dialing system was unambiguous on its face and so, based on the assertions in Mr. Wilson's Declaration, the equipment used to call Ms. Stockwell was not an autodialer. End of discussion. The court appeared simply to ignore all the theoretical arguments on which other court decisions have rested regarding the meaning of the term “capacity” in the statutory phrase “capacity to store randomly or sequentially generated telephone numbers.” Instead, the judge seemed to favor a practical approach based on what the equipment at issue was capable of doing at the time the complained-of calls were placed (the then-current configuration of the equipment).

This approach is reminiscent of the one taken a month ago by U.S. District Court Judge William M. Acker, Jr. in the Northern District of Alabama. Hunt v. 21st Mortgage Corp., 2:12-CV-2697-WMA, 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013). In Hunt, Judge Acker was faced with determining whether telephone equipment that lacks the current capacity for random or sequential dialing, but that possesses the theoretical capacity for such dialing, constitutes an autodialer under the TCPA. In his decision, Judge Acker concluded that an autodialer must have the “present capacity, at the time the calls were being made, to store or produce and call numbers from a number generator.” Consequently, Judge Acker explained, a defendant “cannot be held liable if substantial modification or alteration of the system would be required to achieve that capability.”

As those who have been following our regular alerts on this issue know, the debate in the courts and, more generally, at the FCC, regarding interpretation of the definition of an autodialer under the TCPA has come to focus on this question of what is meant by the term “capacity,” and, specifically, whether the technology used to place calls needs to have the current capacity to randomly or sequentially dial numbers in order to be considered an autodialer. Pending requests at the FCC for declaratory rulings are, for example, trying to tease out whether it is permissible under the TCPA to call mobile phone numbers without prior express consent using equipment to assist in dialing those calls if that equipment’s capacity to randomly or sequentially dial numbers has been disabled. See e.g., Communication Innovators Petition to the FCC, CG Docket No. 02-278; GroupMe, Inc./Skype Communications S.A.R.I. Petition to the FCC, CG Docket No. 02-278.

It is worth noting that the Stockwell case was not brought as a putative class action and, therefore, plaintiff might have been reluctant to spend all the money that would have been required to engage in massive discovery in an attempt to disprove defendant’s facts in order to carry her burden of proof on the autodialer issue. Moreover, though plaintiff did apparently have an expert who had concluded that the equipment at issue was an automatic telephone dialing system, plaintiff’s expert did not submit a declaration of his own rebutting Mr. Wilson's conclusion.

Nonetheless, could the Alabama, and now California, decisions, which give short shrift to the esoteric and highly technical debate that seems to have been going on forever regarding the definition of an autodialer, signal a possible change of direction among judges who might finally be tiring of the endless stream of “gotcha” lawsuits that have been filed in recent years? Only time will tell.

 

Client Alert 13-281