Aaron’s, a lease-to-own retail company, has had a class-action lawsuit filed against it for allegedly violating the Telephone Consumer Protection Act by contacting individuals believed to be debtors using an automated telephone dialing system.
While a TCPA class-action in and of itself is not a man-bites-dog type of story, it is interesting to see how plaintiffs and their attorneys are incorporating the Court of Appeals for the D.C. Circuit’s ruling in ACA International v. FCC, especially as it relates to the use of autodialers.
[Editor’s Note: AccountsRecovery.net is hosting a webinar on Tuesday, June 19 about the TCPA and how compliance has changed following the Appeals Court Ruling. You can register here.]
The Federal Communications Commission has begun the rulemaking process to re-define what constitutes an autodialer following the Appeals Court’s decision. A pair of companion bills have also been introduced in the House of Representatives and the Senate that would amend the definition of autodialer.
In the complaint, the plaintiff uses Declaratory Orders from the FCC that were issued in 2003 and 2008 which provided definitions and explanations of what constitutes an ATDS.
A copy of the complaint in the case of Grogan v. Aaron’s can be accessed by clicking here.
From the complaint:
The 2003 FCC order defined a predictive dialer as “an automated dialing system that uses a complex set of algorithms to automatically dial consumers’ telephone numbers in a manner that ‘predicts’ the time when a consumer will answer the phone and a telemarketer will be available to take the call.” The FCC concluded that “[t]he basic function of such equipment . . . [is] the capacity to dial numbers without human intervention.” The 2008 Declaratory Ruling “affirm[ed] that a predictive dialer constitutes an automatic telephone dialing system and is subject to the TCPA’s restrictions on the use of autodialers.” And in yet another order issued in 2012, the FCC again reiterated that the TCPA’s definition of an ATDS “covers any equipment that has the specified capacity to generate numbers and dial them without human intervention regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.” In 2018, a decision struck down portions of a 2015 FCC Order, but “the prior FCC Orders are still binding.”
In this case, the plaintiff received “numerous” calls to his mobile phone from the defendant. The defendant also left pre-recorded voicemail messages. The defendant alleges that he “requested the calls to stop many times,” and that he contacted the defendant to revoke consent. The plaintiff alleges he did not provide prior express consent to be contacted.