TMCnews Featured Article

Following recent pronouncements from the FCC (News - Alert) concerning who can and can’t be called under the Telephone Consumer Protection Act, or TCPA, local court rulings are driving home a warning to callers: Be careful.

As reported on the website of the National Law Review, “Decisions from various courts have already established that a plaintiff must do more than simply allege that a TCPA defendant used an automatic telephone dialing system (ATDS) to make calls that allegedly violate the TCPA.” In short, you can’t just think you’ve been wrongly called; there are other aspects at play here.

The Review recently cited two cases which it says highlights the specificity needed to make a case.

In the first, “the plaintiff alleged that the defendants used an ATDS to make two calls to his cell phone for the purpose of selling wine,” the Review says.

“The plaintiff’s complaint alleged that the defendants used ‘Five9 (News - Alert) or similar dialer technology’ and that the technology ‘constitutes an automatic telephone dialing system . . . because it had the capacity to dial phone numbers without human intervention’,” the Review noted. “The complaint further alleged that “discovery will show precisely what dialer technology was used.” The Northern District of Illinois found these allegations insufficient to survive a motion to dismiss because the plaintiff simply repeated the language of the TCPA.

But in a different case, the District of South Carolina found for the plaintiff.

The court found that “the defendant used an ATDS where the complaint alleged that ‘[a] number of calls placed to the Plaintiff’s cellular telephone by Defendant were made through the use of an automatic telephone dialing system . . . where the plaintiff also pled additional facts that would support a reasonable inference that the defendant used an ATDS,” the National Law Review reported. “The plaintiff alleged that the defendant ‘made several phone calls within a twenty-four hour period, used six different telephone numbers, placed calls from [a] telephone number . . . using an automated dialer, and made calls to collect an alleged debt’,” the Review said.

It would seem the government is getting serious on cracking down on unwanted calls, and that the courts are in agreement. As such, those using ATDS’ in their business need to be more vigilant.