As the weather changes and I reach for the allergy medicine in my bottom desk drawer, I’m reminded of that old proverb, “March winds and April showers bring forth May flowers.” March winds also bring plenty of pollen and, apparently, a flurry of activity on the Telephone Consumer Protection Act (“TCPA”) front regarding what constitutes an autodialer and how to determine whether a telephone number is a residential one as opposed to a business line.

The Southern District of Florida Endorses One-Click Preview Dialing

On March 28, 2016, in Strauss v. CBE Group, Inc., No. 0:15-cv-62026 (S.D. Fla.), the Southern District of Florida granted a debt-collector and the underlying creditor-defendants’ motion for summary judgment in a TCPA action alleging that CBE Group used an autodialer to place more than twenty calls to the plaintiff’s cell phone in an attempt to collect a debt owed to a wireless carrier. First, the court found that the carrier could not be held vicariously liable for the collection calls placed by CBE Group, holding that there was insufficient evidence of an agency relationship between the defendants. While CBE Group gave the carrier limited access to its information and systems so that the carrier could conduct quality control measures, such as performing audits of CBE Group’s collection calls, conducting periodic onsite visits, and reviewing collection reports made available on CBE Group’s client portal, the court explained that “such quality control falls short of establishing ‘substantial control’ or apparent authority” to hold the carrier vicariously liable.

Second, the court held that CBE Group’s collection calls did not violate the TCPA because they were not placed with an autodialer. More specifically, while acknowledging that the FCC expanded the definition of autodialer in its July 2015 omnibus TCPA Order to include dialing technology that has the potential future capacity to place autodialed calls, the court found that CBE Group’s own patent-pending dialing platform – “Manual Clicker Application” (“MCA”) – was not an autodialer. Among other things, MCA lacked the current capability to dial in a predictive manner in its own right, was not connected to a predictive dialer, and required human involvement to place each call – i.e., a representative had to initiate the call manually by clicking a computer mouse or pressing a keyboard enter key (one-click preview dialing). There also was no evidence that CBE Group could toggle between “predictive and manual mode” within the dialing platform.

CBE Group is yet another in a line of federal district court decisions holding that one-click preview dialers, properly configured, fall outside the TCPA’s definition of autodialer. Nonetheless, telemarketers should continue to carefully assess the capabilities and operations of their specific dialing technologies to ensure compliance with the TCPA.

The FCC Seeks Comment Regarding Whether a Phone Number Listed With a Telephone Service Provider as a “Residential” Number Is Ipso Facto Residential Under the TCPA

On March 31, 2016, the FCC issued a Public Notice seeking comment on a petition filed by attorney Todd C. Bank requesting that the Commission establish a “bright-line” test that, when a telephone number is listed as “residential” by the telephone service provider, it is subject to the TCPA regulations prohibiting calls using prerecorded messages to a “residential line.”

Bank’s petition stems from a July 2015 summary judgment award issued in favor of the defendant in a putative TCPA class action that he brought against Independence Energy Group LLC. See Bank v. Indep. Energy Grp. LLC, No. 12–CV–1369, 2015 WL 4488070 (E.D.N.Y. July 23, 2015). In that case, the court explained that, although Bank had registered his phone number with the telephone service provider as “residential,” he:

. . . held out the Subject Telephone to the public as a business line. Specifically, Bank provides the Subject Telephone number on his business card, professional letterhead for his law practice, and in pleadings and court filings, and he provides it to clients, prospective clients, other attorneys, and business contacts. He also maintains his attorney registration through the New York Unified Court System utilizing the Subject Telephone number as his contact number.

For those reasons, the court held that no reasonable juror could find that the Bank’s was residential.

Comments to Bank’s petition are due by May 2, 2016. The FCC’s ruling could have a significant impact on the ability of marketers to place business-to-business telemarketing calls without running afoul of the TCPA. We will continue to monitor the FCC docket.

Spring has sprung and there is no slowdown in TCPA litigation, as evidenced by the number of new case filings and regulatory activity. Please check back often for more updates on breaking telemarketing developments.