Federal Court Holds TCPA Plaintiff Did Not Adequately Allege ATDS by Richard B. Newman, July 2, 2019 In Bader v. Navient Solutions, LLC (N.D. Ill. June 14, 2019), the North District of Illinois dismissed a Telephone Consumer Protection Act (TCPA) plaintiff’s claims on the basis that the complaint did not possesses sufficient facts to plausibly allege the defendant had used an automated telephone dialing system (ATDS), consistent with post-ACA International v. Federal Communications Commission standards. In ACA International, the D.C. Circuit reviewed a 2015 FCC order that interpreted the TCPA’s prohibition against using automated dialing devices to make unsolicited calls to cellular telephones. The court set aside two portions of the 2015 Order and confirmed two others. In its decision, the court set aside: (i) the 2015 Order’s “expansive” definition of an ATDS; and (ii) the Order’s “one-call safe harbor” exemption for reassigned wireless phone numbers. However, the court confirmed the Order’s approach to revocation of consent under the TCPA (a person may revoke prior consent through “any reasonable means clearly expressing a desire to receive no further messages from the caller”) and the scope of the Order’s exemption for time-sensitive health care calls. In Bader, the plaintiff alleged that the defendant violated the TCPA when it called his telephone more than 100 times in an attempt to collect a third-party’s student loan debt. The plaintiff further alleged that he “experiences a noticeable pause, lasting approximately four to five seconds in length, before [he] is connected with a live representative.” The plaintiff concluded that this is indicative of the use of predictive dialing technology. The court agreed with the defendant’s argument that the plaintiff failed to allege facts establishing that it “used a device that had the ability to generate random or sequential numbers and dial such numbers.” Despite the plaintiff’s allegations that the “continual calling, even after being told that he was not the person [the defendant] was seeking,” the court opined that under the post-ACA International threshold, plaintiffs must plead and prove that dialing equipment can: (i) generate numbers, either randomly or sequentially; and (ii) dial such numbers. Because the plaintiff had not done so here, the court dismissed the case. Takeaway: The ACA International ruling is an important decision for telemarketers, lead generators, call centers and TCPA defendants. It clarified the definition of ATDS and made it a bit more challenging for TCPA plaintiffs to recover damages. As always, those engaged in telemarketing campaigns should consult with experienced FTC CID attorneys and, without limitation, conduct thorough compliance audits, ensure that recipients of calls have provided lawful prior express consent to be called, and establish proper opt-out and revocation of consent protocols. Richard B. Newman is an FTC attorney at Hinch Newman LLP. Follow FTC CID lawyers on LinkedIn. Attorney Advertising. Informational purposes only. Not legal advice. Filed under: Blue Book, Bluebook Magazine, Revenue, Revenue Blog Tagged under: FCC Compliance, FTC Compliance, TCPA, Telephone Consumer Protection Act About the Author Richard B. Newman is an FTC defense lawyer at Hinch Newman LLP. He is a nationally recognized FTC defense lawyer and advertising compliance attorney. He regularly provides advertising counsel and represents clients in high-profile investigations (CIDs) and enforcement proceedings initiated by the Federal Trade Commission, state attorneys general, departments of consumer affairs, and other federal and state agencies with jurisdiction over advertising and marketing practices. Richard’s practice also concentrates upon transactional matters relating to the dissemination of national advertising campaigns, including the gamut of affiliate marketing, telemarketing, lead generation, list management and licensing agreements.