Telephone Calls that are Manually Dialed May Still Violate the TCPA

Adam J Krohn
July 4, 2013

(US Law) The Telephone Consumer Protection Act (“TCPA”) already regulates the use of auto dialers, used to initiate faxes, prerecorded voice messages, and SMS text messages. However, a recent federal court ruling out of the Western District of Wisconsin has expanded the TCPA’s reach. In the case Nelson v. Santander Consumer USA, this court found that the TCPA may apply to some calls that are not initiated by auto dialers.

In this case the plaintiff, Heather Nelson, alleged that the defendant called her cell phone number over 1,000 and leaving 116 prerecorded messages within one year while attempting to collect debts on two vehicles that Nelson had financed. One of claims was for alleged violations of the TCPA. The plaintiff’s motion for summary judgment on the TCPA claim was granted by the district court. She was awarded $571,000 in statutory damages.

The defendant used Aspect telephony system to make these calls. The system had the ability to use both predictive and preview dialing. Predictive dialing systems use an algorithm to predict when an agent will be available to handle outbound calls. When using the preview dialing mode, the agent chooses a telephone number manually to call by clicking one button on the computer screen and then the system dials the number. The defendant used both predictive and preview dialing to call a list of numbers.

When the defendant opposed the summary judgment they argued that Nelson did not show which calls it made using predictive dialing and which used preview dialing. While the court acknowledged that preview dialing may be outside the scope of the TCPA, the question was not how a particular call was made, but whether the system that made the call had the capacity to make automated calls. Since the system did have the capacity to do so the plaintiff would be entitled to summary judgment.

Under this decision, companies that dial cellular numbers manually could still be liable under the TCPA provided the calling system used to make the call has the capacity to make automated calls using an auto dialing system. Just because human intervention is involved when making the calls is not necessarily a guaranteed defense after this ruling, should other federal courts choose to follow the Western District of Wisconsin’s ruling. This is an interesting point because courts have previously held that pre-recorded call do not violate the Fair Debt Collection Practices Act, whereas attitudes under the TCPA may be shifting towards prohibition.

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