Courts across the country have been split on whether it is the hypothetical capacity of equipment to autodial, or the actual use of that equipment, that renders calling equipment an “autodialer” under the TCPA. Recently, a federal court judge in Massachusetts held that a predictive dialer that has the capability to store numbers constitutes an automated telephone dialing system (“ATDS”) under the TCPA – regardless of whether the defendant took advantage of that feature.

To make its collection calls, defendant Diversified utilized a telephone system operated by cloud-based server LiveVox. The LiveVox system could dial numbers sequentially, but Diversified did not use that function. Diversified argued that because it did not make use of the sequential dialer, or store the numbers in the LiveVox system for more than a single day, the equipment it used for its calls failed to meet the definition of an ATDS in the statute.

But the court disagreed.

“The undisputed evidence here clearly establishes that the LiveVox system has the capacity to store telephone numbers,” said U.S. District Court Judge F. Dennis Saylor IV. “[I]t is undisputed that the system stores numbers for at least the course of a single day. The TCPA, on its face, does not require storage for any length of time. In any event, the system here has the capacity to do so.”

Calling the question of whether the LiveVox system has the capacity for random or sequential number generation “a somewhat murkier question,” Judge Saylor nonetheless said Diversified’s evidence was insufficient to raise a dispute of material fact to prevent summary judgment. “[I]t is undisputed that LiveVox is a ‘predictive dialer’ that dials from lists of numbers,” the court said. “The FCC rulings specifically account for the fact that technology has developed such that lists of numbers are more cost-effective than random or sequential numbers. The agency concluded that a ‘predictive dialer’ that relies on lists of numbers qualifies as an ATDS under the TCPA,” a ruling entitled to deference.

Granting summary judgment for the plaintiff, the court said a question remained as to whether Diversified could be on the hook for treble damages under the statute, questioning whether the violations were willful or not.

To read the order in Davis v. Diversified Consultants, Inc., click here.

Why it matters: The battle over ATDSs continues. Disagreeing with other courts, the Massachusetts court believes that FCC regulations establish that the capacity to store or function as a predictive dialer is sufficient to meet the statutory definition of an ATDS, no matter how a company uses the dialing system. In addition, the court noted that the TCPA does not define the length of time a number must be “stored” by a system, and the period of a single day is therefore sufficient. Not all courts agree with the Davis decision: a Pennsylvania federal court reached a contrary conclusion earlier this year. Seeking clarity, multiple entities have filed petitions with the FCC for clarification of the issue, but companies face continued uncertainty from the courts until the agency chooses to respond.