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June 2022 - Call Compliance News

Third Circuit Court of Appeals

The Third Circuit Court of Appeals has ruled that an “automatic telephone dialing system” (“ATDS”) is determined by “that equipment’s [present] ‘capacity’ to employ a random or sequential number generator to store or produce telephone numbers, not its actual use of such a generator.” Panzarella v. Navient Sols., Inc.

Comment: If you’ve been following this dispute at all, you have already reviewed your dialer to ensure it does not have a random or sequential number generator which can create or store telephone numbers, at all. Your system should only be able to call numbers which are loaded to it, and those numbers should be stored and called in some non-random order. I would be happy to review your dialer or your vendor’s dialer to ensure it is not an ATDS under the standard.

Colorado

A Colorado court has ruled that the Telephone Consumer Protection Act (“TCPA”) definition of ATDS requires it to use a random or sequential number generator to create telephone numbers. Mina v. Red Robin Int’l Inc. The court rejected plaintiff’s argument that the system had the capacity to randomly or sequentially decide which numbers to call from a stored list made it an ATDS. Further, the court rejected plaintiff's argument that a text is an artificial voice which can’t be sent to cell phones absent prior express consent.

Comment: The court noted that the term “artificial or prerecorded voice” is plain and unambiguous and means “sound produced by one’s vocal system” not the “metaphorical meaning” plaintiff argued.

Pennsylvania

A court has dismissed a lead provider from a TCPA case after the lead purchaser called the plaintiff to sell education services. Lacon v. Educ. Principle Found. The court ruled that the lead provider did not have minimal contacts with the state of Pennsylvania such that it had personal jurisdiction over that company. It sold lead packets to the callers, but it had “no control” over what the sellers did with those leads. “Once it sent the lead packets, its role ended.” The court ruled that because it did not place the calls, supervise the calls, or even monitor the calls at all, the court did not have jurisdiction.

Comment: I would also argue that the TCPA would not apply because the lead seller did not make the calls. It would still be important to review the lead sales contract to determine liability between the lead seller and lead purchaser, but the plaintiff would have no claim against the lead seller.

Texas

A Texas court has dismissed a case brought by a frequent pro se plaintiff against an entity which did not even show up to defend the case. Hunsinger v. Akatsuki Investments, LLC. Hunsinger filed a complaint and Akatsuki never answer. Hunsinger amended the complaint and Akatsuki never answered. Finally, the court ruled that if Hunsinger failed to request an entry of a default judgment, the court would dismiss the claim for want of prosecution. He did not seek a default and the court therefore dismissed the complaint.

Comment: If you are served with a suit or if you receive a complaint letter from an individual or governmental entity, not responding is the worst course of action. This defendant got very lucky.

The authors make every attempt to provide current, accurate information, but Telemarketing ConnectionS® is not intended to be a substitute for legal counsel, and readers should not use it in lieu of obtaining knowledgeable legal, or other professional, counsel expert in the field of commercial telemarketing law. References in Telemarketing ConnectionS® do not constitute endorsement by Copilevitz & Canter, L.L.C. or Telemarketing ConnectionS®. January 1, 2005, Copilevitz & Canter, L.L.C.
 
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