Antitrust Law Daily Wrap Up, ADVERTISING—M.D. Fla.: Calls made using predictive dialer were subject to TCPA liability, (Jun 8, 2015)

By Peter Reap, J.D., LL.M.

Debt collection calls made by NRA Group, LLC, to plaintiff Debra Brown using its “Mercury Predictive Dialer (“MPD”) were made by an “automatic telephone dialing system” under the meaning of the Telephone Consumer Protection Act (“TCPA”), the federal district court in Orlando has decided (Brown v. NRA Group, LLC, June 5, 2015, Presnell, G.). Thus, Brown was entitled to summary judgment on her claim that the calls violated the TCPA. However, Brown was denied summary judgment that the calls constituted knowing and willful violations of the Act.

Background. Between September 20, 2013, and January 8, 2014, NRA made 35 calls to Brown’s cell phone number. NRA was attempting to collect a debt from an individual who had no connection to Brown. Brown asserts, and NRA does not dispute, that on October 25, 2013 (and several times thereafter) she contacted the company and provided notice that it was calling a wrong number. Twenty two of the 35 calls at issue were placed after October 25, 2013.

On April 18, 2014, Brown filed the instant suit, alleging that the calls violated the TCPA, as well as other statutes. In her instant motion for summary judgment, Brown sought summary judgment only as to her TCPA claim.

TCPA. The TCPA prohibits the making of any call to a cell phone number using an “automatic telephone dialing system” without the prior express consent of the party being called. 47 U.S.C. § 227(b)(1)(A)(iii). The term “automatic telephone dialing system” is defined by the Act as “equipment which has the capacity … to store or produce telephone numbers to be called, using a random or sequential number generator [and] to dial such numbers.” 47 U.S.C. § 227(a)(1).

NRA argued that it did not violate the TCPA because the calls that were placed to Brown’s cell phone line were not made by using an “automatic telephone dialing system” as required by the Act. NRA admitted that the calls at issue here were placed via its MPD. The Federal Communications Commission (“FCC”) has consistently determined that predictive dialers constitute automatic telephone dialing systems for purposes of the TCPA, and this court was bound by those determinations, the court said.

Despite the name, NRA contended that the MPD is not a “predictive dialer” as that term is used by the FCC and therefore it is not an automatic telephone dialing system for purposes of the TCPA. According to the FCC, predictive dialers generally do not rely on a random or sequential number generator to determine the numbers to dial. Instead, in most cases, telemarketers program the numbers to be called into the equipment, after which the dialer calls the numbers at a rate to ensure that when a consumer answers, a sales person is available to take the call.

The lack of random or sequential number generators has not stopped the FCC from concluding that predictive dialers qualify as automatic telephone dialing systems under the Act, the court noted. To determine whether a given dialer is a predictive dialing system, and therefore an automated telephone dialing system under the TCPA, the primary consideration is whether human intervention is required at the point in time at which the number is dialed, according to the court.

Here, the MPD utilized by NRA has three modes, one of which is “predictive mode.” According to NRA’s CEO, Steven Kusic, in predictive mode the MPD employs “an algorithm that paces the productivity of the collector or teams of collectors with the workload and the results of that workload.” Kusic also testified that in predictive mode, the MPD is intended to automatically drop any calls that are answered by an answering machine or result in busy signals. Charlene Sarver, NRA’s assistant director of dialer and collections, testified that the two campaigns that resulted in calls to Brown were predictive dialer campaigns, meaning that when calls were made as part of those campaigns, they were made in predictive mode.

NRA argued that certain human intervention preceding the dialing precluded the MPD from being classified as a predictive dialer. In particular, NRA pointed to Kusic’s testimony that the MPD only initiates calls “based upon what the collector requests” and that the request that the collector must make prior to the placement of any dialer assisted call is done manually.

This testimony was not enough to establish the existence of a genuine issue of material fact as to whether the calls to Brown were made by a predictive dialer, the court held. None of Kusic’s testimony contradicted that of Sarver, who established that when the MPD is operating in predictive mode, as when Brown was called, no human intervention occurs at the point where the call is dialed. Other testimony from Kusic was consistent with this testimony from Sarver.

Kusic’s testimony established that there is some human intervention prior to calls being made by the MPD in predictive mode. Despite this, it was clear that such calls are made automatically, which is the primary consideration according to the FCC. This minimal amount of human intervention is entirely consistent with the FCC’s description of predictive dialers as devices that “store pre-preprogrammed numbers or receive numbers from a computer database and then dial those numbers in a manner that maximizes efficiencies for call centers,” the court ruled. 18 F.C.C. Rcd. at 14090.

Because NRA failed to establish the existence of a genuine issue of material fact as to whether the 35 calls to Brown were made by an automatic telephone dialing system, as defined in the TCPA, Brown was entitled to summary judgment as to liability on her TCPA claim.

Knowing and willful. Brown also sought summary judgment that the NRA’s calls constituted knowing and willful violations of the TCPA, entitling her to treble damages. While NRA’s claim that it was unaware that the MPD was in fact a predictive dialer seemed dubious, Brown provided no evidence to the contrary. Viewing the facts in the light most favorable to NRA, there was a genuine issue of material fact as to whether NRA knew it was using an automatic telephone dialing system to place the calls to Brown’s number. Summary judgment was therefore not warranted as to this issue, the court determined.

The case is No. 6:14-cv-610-Orl-31-KRS.

Attorneys: Michael J. Vitoria (Morgan & Morgan, PA) for Debra Brown. Benjamin W. Raslavich (Golden Scaz Gagain, PLLC) for NRA Group, LLC.

Companies: NRA Group, LLC

Cases: Advertising FloridaNews