Interpreting the Federal Communications Commission's July Order, a California federal court held that a company's manual use of a desktop telephone did not trigger Telephone Consumer Protection Act liability under the agency's "potential capacity" standards for an automated telephone dialing system (ATDS).
Holly Freyja sued Dun & Bradstreet for allegedly calling and soliciting her while her number was listed on the National Do Not Call Registry. The defendant moved to dismiss, arguing that the call was made by a third-party contractor who was a sole proprietor using an Avaya 4610 desktop telephone. The contractor manually pressed by hand each digit of the phone number, Dun & Bradstreet told the court.
An ATDS is a piece of "equipment which has the capacity to (a) store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers," per Section 227(a)(1) of the TCPA.
U.S. District Court Judge Dale S. Fischer looked to the FCC's recent Order that discussed what constitutes an ATDS. "The Commission has long held that the basic functions of an autodialer are to 'dial numbers without human intervention' and to 'dial thousands of numbers in a short period of time,'" she wrote, quoting from the Order.
"The undisputed facts demonstrate that Plaintiff was not called from an ATDS," the court said. "Evidence demonstrated that the Avaya 4610 desktop phone cannot, by itself, be used as an autodialer. At best, it could be used to receive calls from an autodialer if the agent's computer had the appropriate software, the agent had proper login credentials, and the dialer was appropriately configured."
"But none of this was true for the phone used by the agent that called plaintiff," Judge Fischer wrote. Although Freyja argued that the contractor's phone was connected to a desktop computer, the court said she provided no explanation for why that fact contradicted any evidence put forth by the defendant.
In addition, the court found that the call to the plaintiff was not a "telephone solicitation" as defined by the statute: "the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property goods, or services, which is transmitted to any person."
The defendant submitted evidence showing that the call was made for the purpose of acquiring information about the commercial services provided by Freyja and not to market to her or to sell her anything, the court said. The only piece of evidence provided by the plaintiff to support her contention was her deposition response to the question, "Do you believe [the defendant] could have possibly been trying to sell you some type of product or service?" to which she answered "yes."
"But Plaintiff's mere belief that Defendant 'could have possibly' been trying to sell something—especially with no further foundation—does not raise a reasonable inference that Defendant was actually trying to sell her anything," Judge Fischer said. "Notably, Plaintiff points to no evidence that she was subjected to marketing during the call or any other reason to believe that the calls were for a sales purpose. Plaintiff implicitly suggests … that because Defendant sells business information it gathers to other people, calls made to gather that information are solicitations. But this is just incorrect. The regulation bans calls to sell property, goods, or services, not calls to acquire information."
To read the order in Freyja v. Dun & Bradstreet, Inc., click here.
Why it matters: Despite the FCC's broadening of the definition of an ATDS to include equipment which has the capacity to store or produce telephone numbers to be called, the court found that the defendant did not violate the statute. The desktop telephone used by the third-party contractor required numbers to be dialed by hand and this manual effort requiring human intervention resulted in dismissal of the lawsuit. While the judge had no trouble making the call in this case, other courts across the country have struggled with what constitutes an ATDS.