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Federal Court Rules Predictive Dialer Not an ATDS

Telemarketing Compliance Alert

Since the D.C. Circuit’s decision in ACA International v. FCC, there has been much controversy concerning whether a predictive dialer constitutes an automatic telephone dialing system under the Telephone Consumer Protection Act. Further deepening the divide amongst District Courts, the Northern District of Illinois recently ruled that it does not. (Pinkus v. Sirius XM Radio, Inc.)

In Pinkus, plaintiff alleged that Sirius XM Radio violated the TCPA by placing numerous cellular calls via a predicative dialer and that the prior Federal Communications Commission rulings control. The court disagreed, holding that ACA International invalidated the FCC’s prior interpretation and rulings regarding what constitutes an ATDS. In doing so, it rejected plaintiff’s linguistic interpretation of the phrase “using a random or sequential number generator” and that a dialing system is an ATDS if it can either produce numbers using a random or sequential number generator or just store and dial numbers.

The court determined that the phrase “‘using a random or sequential number generator” means that an ATDS must have the capacity to generate telephone phone numbers, either randomly or sequentially, and then to dial those numbers. According to the court, since a predictive dialer dials from a fixed list of telephone numbers and does not utilize a random or sequential number generator, the technology does not constitute an ATDS.

Despite the ruling, this predicative dialer issues remains unsettled.

Richard Newman is an attorney at Hinch Newman LLP.

Informational purposes only. Not legal advice. Always seek the advice of an attorney. Previous case results do not guarantee similar future result.

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Richard B. Newman

Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on advertising law, Internet marketing compliance, regulatory defense and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

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