Well here’s a first.
Given the uncertainty of the federal–and now state–autodialer landscape, many careful callers will include consent disclosures referencing autodialers in their privacy policies nd in various disclosures. The use of these disclosures is simply prudent practice–designed to protect callers in the you-never-know-what-is-coming-next world of the TCPA.
They are certainly not an “admission” and regulated technology meeting any specific statutory definition is actually being used, and no court has ever so found.
Until now.
In Zononi v. CHW Group, 2023 WL 2667941, Case No. 22-cv-14358-Cannon/McCabe (S.D. Fl. March 7, 2023) a magistrate judge in Florida has recommended an FTSA complaint survive the pleadings stage because the Defendant “admitted” it used an autodialer in its privacy policy.
Here is the court’s reasoning:
First, the FAC alleges that Defendant’s own website—as part of its Privacy Policy—admits that it uses “automated dialing equipment.” Specifically, the FAC alleges: In fact, on its website, Defendant attempts to conceal from consumers in a lengthy Privacy Policy that it will harass them with calls and text messages using “automated dialing equipment”. http://www.choicehomewarranty.com/privacy-policy/; (last accessed Dec. 16, 2022). (DE 9 ¶ 27).
The Privacy Policy further provides as follows: You also attest that you have the legal authority over any telephone number you provide to us and can provide the authorization to contact you. This means CHW may contact you, in person or by recorded message, by e-mail, telephone or mobile telephone number (including use of automated dialing equipment), text (SMS) message, or any other means of communication that your wireless or other telecommunications device may be capable of receiving. (DE 9 ¶ 27) (emphasis added).
By Defendant’s own admission, therefore, the company uses automated dialing equipment as part of its business.
Woah. What?
Just because a policy says a caller may do something doesn’t mean they are doing something. And as just explained folks include these disclosures to be safe, not to imply–much less “admit”–that they are using technology governed by law.
Again, these sorts of disclosures are common fair–used by smart businesses to avoid assertions they did not obtain consumer consent. Courts should really avoid using these sorts of disclosures against companies–it disincentives the very transparent consumer consent that courts should be encouraging.
I don’t like this one bit and I hope the district court rejects this potion of the ruling. We will keep an eye on this.