If you are using "preview dialing" to circumvent the restrictions imposed by the Telephone Consumer Protection Act ("TCPA"), you should be aware of a recent decision finding that such dialing is subject to the Act.
On March 8, 2013, a federal court in Wisconsin ruled "preview dialing" is autodialing under the TCPA. The defendant called the plaintiff's cell number 1,026 times. The defendant was unable to prove the calls were made with consent. The plaintiff established the defendant made the calls with an "automatic telephone dialing system." The Court specifically rejected the defendant's argument that the calls were not made with an "automatic telephone dialing system" because the calls were made using "preview dialing," where "an employee rather than the system chooses which number to dial." The Court called the defendant's argument a "red herring" because "the question is not how the defendant made a particular call, but whether the system it used had the 'capacity' to make automated calls." The Court awarded plaintiff $513,000 for 1,026 violations of the TCPA.
This decision is troubling for a number of reasons. Most alarmingly, this case will be cited for the proposition that, regardless of how a cell phone is called-whether predictively dialed, preview dialed, or even manually dialed-the call will be subject to the TCPA if the call is made with or routed through equipment which has the capacity to place automated calls.
We anticipate this decision will lead to more TCPA litigation. Now is the time to reassess how your company calls cell phones. Do not hesitate to contact us if you have any questions.
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