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TCPAThis blog recently discussed a split in the courts over the definition of an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”).  (See Courts Split Over Definition of “Autodialer” Under TCPA).   One Massachusetts federal court has further broadened the definition of ATDS under the TCPA.  In Davis v. Diversified Consultants, Inc., the United States District Court for the District of Massachusetts granted the plaintiff summary judgment on its TCPA claim despite the argument by the defendant that it did not use an ATDS.

The Facts

The facts in the case were simple.  The defendant acquired an account from a consumer with an outstanding balance.  After attempting to collect the debt on its own, the defendant hired a “skip trace” service to locate the consumer’s current telephone number.  However, the third-party skip-trace provided the telephone number of the plaintiff, who was not the indebted consumer.  The plaintiff received over 60 telephone calls placed on behalf of the defendant to his cellular telephone.

The defendant used a voice-over-Internet Protocol system called “LiveVox” to dial consumers.  Every morning, the defendant’s director would upload a file containing telephone numbers to be called that day.  The LiveVox system would call consumers.  If someone answered the call, the system routed that call to the defendant who had live operators ready to speak with consumers.  The LiveVox system had the capacity to store telephone numbers for up to 30 days, although in this particular instance, it did not.

The Ruling

The Court found that the LiveVox system was an ATDS.  Particularly, the Court stated that the LiveVox system was a “predictive dialer” and therefore, pursuant to a ruling from the Federal Communications Commission, it qualifies as an ATDS.  Although the Court could not clearly determine if the LiveVox system had the capacity for random or sequential number generation, it found this question irrelevant.  So long as the system had the “capacity to store telephone numbers,” the Court determined that it qualifies as an ATDS.

Protect Yourself

Although Courts throughout the country remain split on the definition of an ATDS, the Massachusetts Court ruling broadly expands the scope of the TCPA by ruling that the ability of a machine to store and dial telephone numbers constitutes an ATDS.  Telemarketers and debt collectors should take caution when deciding what technology to use to increase efficiency, or face potential liability under the TCPA.

If you are interested in learning more about this topic or need to review your telemarketing and/or debt collection practices, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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