The Telephone Consumer Protection Act was enacted to regulate the use of auto and predictive dialers. Its reach has been further extended by a federal court in the Western District of Wisconsin.
The recent judgment in the case of Nelson v. Santander Consumer USA extends the TCPA to apply to calls even in cases where an auto or predictive dialer is not used.
Plaintiff Heather Nelson alleged that the defendant, an automobile finance company, had repeatedly called her cellular telephone number which was listed under her husband’s name. Nelson received over 1,026 calls, of which the company left 116 prerecorded messages over the course of a year.
The calls were made by the company to collect a debt on two vehicles the plaintiff had financed. The plaintiff also claimed damages in view of violations of the TCPA. The district court heard the arguments and granted the plaintiff’s motion for summary judgment with respect to the TCPA claim. It awarded $571,000 in statutory damages.
The defendant had actually used the Aspect (News - Alert) telephony system, a computer telephone software system that is capable of routing inbound calls and places outbound calls. The system performs both predictive dialing and preview dialing.
When in predictive dialing mode, the telephony system leverages an algorithm for dialing numbers which helps the system predict when an agent will become available to take the next outbound call.
In preview dialing mode the telephone number to be dialed is selected by the agent from a display on the computer screen and the system will dial that number. This eliminates the need to dial ten digits. In this case the defendant had created a list of telephone numbers and used both predictive and preview dialing to call the numbers.
Santander argued that the plaintiff had not categorized the calls made using either of the dialer systems, and the court acknowledged that preview dialing may indeed be outside the scope of the TCPA. It came to the conclusion that, irrespective of whether preview dialing falls within the scope of the TCPA or not, the issue was if the system used by the defendant had the capacity to make automated calls.
This case highlights the fact that companies that manually dial cellular numbers via preview dialing or through any other method will be subject to TCPA liability in case their calling system can generate automated calls. Even if human intervention is involved it may not provide a defense.
As covered by TMCnet, failure to adhere to rules and regulations can prove very expensive to call centers; thus, it is critical that companies invest sufficient time and money to train your agents. Whether it’s the TCPA, state and local licensing, FDCPA or the new CFPB, call centers and collection departments face an ever-increasing daily compliance challenge as rules and regulations pile up.
Edited by Blaise McNamee