Generally, the Telephone Consumer Protection Act (TCPA) applies to calls using an autodialer, but the landscape has changed following the decision in Nelson v. Santander Consumer USA, Inc., 931 F. Supp. 2d 919 (W.D. Wis. 2013). The plaintiff in this case alleged that Santander called her cell phone more than 1,000 times and left over 100 pre-recorded messages
over the course of a year using an autodialer, in an attempt to collect
an outstanding debt on two vehicles. The Court granted the plaintiff’s
summary judgment motion, finding that the defendant violated the TCPA
and awarding the plaintiff $571,000.
The court found that it was sufficient that the telephone equipment
used by the defendant had the capacity to produce, store and call
telephone numbers. Specifically, the Court found that in making these calls, Santander used the Aspect telephony system, a
computer telephone software system that routes and places inbound and
outbound calls. Aspect has the capacity to (1) store telephone numbers and then call them; and (2) perform “predictive dialing” and “preview dialing.”
Predictive dialing is where the system times the dialing of numbers using
an algorithm to predict when an agent will become available to receive
the next call. To facilitate that method of dialing, Santander created
lists of customer telephone numbers to be called on a particular day. Preview dialing is where an employee chooses a telephone number by clicking on a
computer screen and the system calls it.
Santander argued that the calls to the plaintiff were made by a
live person using the preview dialing function of the Aspect telephony
system, which it claimed are not autodialed calls within the meaning of
the TCPA. The Court disagreed, relying on the FCC’s expansive
interpretation of the term “automatic telephone dialing system” in
finding that “the question is not how the defendant made a particular
call, but whether the system it used had the ‘capacity’ to make the
automated call.”
So, if you receive a call from a telemarketer or debt collector to your cell phone, it is most likely that regardless of whether a human punched in the numbers, the call would fit within the definition of an autodialed call under the TCPA.
