Texas Judge Rules Predictive Dialers Fall Outside Definition of ATDS, Countering Marks

A District Court judge in Texas has granted a defendant’s motion to dismiss claims it violated the Telephone Consumer Protection Act by calling the plaintiff on her cell phone without her consent using an automated telephone dialing system. What is interesting about the ruling is that the judge determined that predictive dialers fall outside the definition of ATDS following the ruling in ACA International v. FCC.

A copy of the ruling in Adams v. Safe Home Security can be accessed by clicking here. The judge partially granted and partially denied additional charges that the defendant violated the Texas Debt Collection Act.

The plaintiff had a home security contract which she canceled with the contract expired. The defendant called the plaintiff’s cell phone, attempting to collect on a past-due debt. The plaintiff contends that when she picked up the phone, there was a pause of several seconds before the representative on the other end of the phone began speaking. The plaintiff claimed the charges were not legitimate and “demanded” the defendant stop contacting her. The defendant made 20 more calls to the plaintiff’s cell phone after the demand was made.

In determining that not only was the 2015 order from the FCC in relation to the TCPA ruled invalid by the result in ACA v. FCC, the judge also decided that previous orders from the FCC — in 2003 and 2008 — were invalid, too. In looking at section 227 of the TCPA, Judge Barbara Lynn, the chief district judge for the District Court for the Northern District of Texas, Dallas Division, ruled that predictive dialers fall outside the definition of an ATDS. Judge Lynn “respectfully” disagreed with the Ninth Circuit Court of Appeals ruling in Marks v. Crunch San Diego, as it pertains to what “using a random or sequential number generator” modifies in the definition of an ATDS — the numbers stored and/or the numbers produced. While Marks decided that the clause only modifies the production of telephone numbers, Judge Lynn decided that it modifies both, in order to avoid “a grammatically incongruous sentence structure.”

“Defendant argues that Plaintiff’s allegations only suggest the use of a predictive dialer because the calls were targeted for the purpose of collecting a past due debt and not susceptible to being created by a random or sequential number generator,” Judge Lynn wrote. “However, nothing precludes Defendant from having used a device that can both randomly or sequentially generate numbers and act as a predictive dialer. The statute only requires that the device have the current capacity to store or produce randomly or sequentially generated numbers — not that the calls in question are actually related to that function.”

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