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

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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 sequence, dialing sequence, dialing sequence. (and Human Selection systems, Human Selection systems, Human 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.

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Published by Eric J. Troutman

The Czar of TCPAWorld Eric Troutman is 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. He also helps industry participants build TCPA-compliant processes, policies, and systems. Eric has built a national litigation practice based upon deep experience, rigorous analysis and extraordinary responsiveness. Eric and his team feel equally at home litigating multibillion dollar telecommunications class actions in federal court as they do developing and executing national litigation strategies for institutions facing an onslaught of individual TCPA matters. They thrive in each of these roles – delivering consistently excellent results – while never losing sight of the client experience. While many firms now tout TCPA expertise, Eric has been there from the beginning. He built one of the country’s first TCPA-only defense teams and began serving as national TCPA counsel for his clients nearly a decade ago. This perspective allows him to swiftly develop the right litigation strategies for dealing with recurring problems, without wasting time on tactics that are bound to fail. Eric’s rich historical perspective and encyclopedic knowledge of the TCPA landscape also make him an invaluable resource to institutional compliance teams struggling to comply with the shifting regulatory landscape. No task is too small – or too big. Indeed, Eric and his team have helped build TCPA-compliant systems and processes for some of the largest and most complex corporate entities in the country. He commonly works with in-house compliance counsel to build and implement enterprise and business-line specific TCPA solutions, performs TCPA audits and drafts and reviews proposed TCPA policies and procedures. He and his team also have the technical expertise necessary to assist call centers seeking to develop TCPA-resistant call path architecture or to modify existing telephony and software integration to better insulate from potential TCPA exposure. Eric has built a reputation for thought leadership. An avid blogger and speaker, he has been at the forefront of the industry’s effort to push for clarity and a return to sanity for the TCPA for years. He was selected to advocate for the financial services industry on important TCPA issues before the Federal Communications Commission and co-authored the nation’s only comprehensive practice guide on TCPA defense. In his spare time, Eric leads defense teams representing banks and other financial services companies in consumer finance litigation matters. He has experience representing clients in UCC, TILA, RESPA FCRA, CCRA, CLRA, FDCPA, RFDCPA and FCCPA claims, as well as in fraud and bank operations issues.

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