On December 17, a federal judge in the U.S. District Court for the District of New Jersey denied a motion to dismiss a lawsuit alleging that Quest Diagnostics violated the Telephone Consumer Protection Act by placing debt collection calls to an individual on her mobile device without her consent.

In his six-page opinion, Judge William J. Martini ruled that plaintiff Judy Wilson had sufficiently alleged that the equipment used to place the call at issue qualified as an automatic telephone dialing system, or ATDS, which is prohibited under the TCPA and is defined under the statute as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator and to dial such numbers.”

Wilson alleged that she received an unsolicited call from Quest, the purpose of which was to collect a debt from someone other than Wilson. This was the first call Wilson ever received from Quest, and she had not previously consented to being contacted by Quest on her cell phone. Wilson also alleged that when she answered the call, she heard a momentary pause before a representative spoke to her, a fact which indicated (to Wilson) that Quest had used a predictive dialer to place the call.

Judge Martini’s ruling noted that a predictive dialer has been considered an ATDS under “binding precedent,” and held that “[d]ead air after answering the phone is indicative that the caller used a predictive dialer.”

The key question in the case was what falls within the TCPA’s definition of “autodialer.” In 2003, the FCC issued a ruling that found that a predictive dialer, such as “equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls” fell within the TCPA’s definition of an ATDS. The FCC reaffirmed this finding in 2008 and again in 2015 in an omnibus order.

In March 2018, the D.C. Circuit ruled in ACA International v. FCC that that the FCC’s 2015 broad interpretation of autodialer was “utterly unreasonable” because under such a broad definition, all smartphones would be considered autodialers. In June, the Third Circuit agreed and ruled in Dominguez v. Yahoo that ACA International was binding.

Judge Martini’s ruling interpreted Dominguez to mean that ACA International did not strike down the FCC’s 2003 and 2008 orders, but only the 2015 omnibus order. Citing the 2003 order, Judge Martini concluded that “a predictive dialer qualifies as an ATDS so long as it has the capacity to dial numbers without human intervention.”

Judge Martini’s ruling leaves room for the autodialer issue to be revisited later in the litigation, after the parties have had an opportunity to conduct discovery.