a few Observations About the New Allan ATDS Ruling

Since you stopped by–here are a couple of points from Allan you may have missed.

First, notice that the Court granted summary judgment in favor of the Plaintiff–awarding $176,500.00 against the Defendant in the process.

Second, notice that this was a revocation case. Revocation is generally a fact issue. However the Defendant failed to introduce any evidence to dispute that Plaintiff’s rather vague statements constituted a full and final request that all calls using an ATDS stop. I have opinions about this. Setting that aside, however, the language used to “revoke” consent in Allan was “stop calling [me] on [my] cell phone.” Make a note of it.

Third, the court was unpersuaded that human intervention used to create a predictive dialer campaign constituted sufficient human intervention to thwart a finding of ATDS usage. Unsurprising since the court found Marks to be convincing.

Fourth, and perhaps most importantly, the Court found that the Defendant’s uncertainty regarding whether its dialer was an ATDS thwarted a finding of willfulness. As the Court put it:

at the time that PHEAA acted in violation of the statute, the FCC had equivocated on whether the type of system PHEAA used qualified as an ATDS.

On that basis, and because the Plaintiff failed to demonstrate that the Defendant knew Plaintiff had revoked consent, the court found a lack of willfulness.

Fifth– note that the court affirmatively found Defendant did not violate the statute willfully or knowingly. It did not merely decline to exercise its discretion to treble damages.

Hope you enjoyed.



Leave a Reply