Court Finds Algorithmic Calling Sequence Triggers ATDS

The court in McEwen v. Nra of Am. & Infocision, No. 2:20-cv-00153-LEW, 2021 U.S. Dist. LEXIS 242273 (D. Me. December 20, 2021) allowed an amended complaint to be raised against defendant arguing the dialer the defendant used was an ATDS. The court explained their decision saying, a device that calls phones numbers from a “preproduced list” may still be an ATDS, so long as it “use[s] a random [or sequential] number generator to determine the order in which to pick” the numbers from the list or otherwise stores the list of numbers using a random or sequential number generator. Id. at 1172 n.7. The court here explicitly utilized the definition of an ATDS found in footnote 7 of Facebook v. Duguid.

Even further, however, the court explains: InfoCision maintains one or more lists of phone numbers, which are automatically plucked from the list using an algorithm and robotically dialed in the order in which they are picked. According to the decision found in McEwen, a dialer which uses an algorithm to pick a number from a preproduced list could be considered an ATDS. Customer Dynamics product Safe Select uses Human Sequence Decision technology to avoid being labeled as an ATDS.

To learn more about this development in TCPA realm precedent, check out attorney Eric Troutman’s blog TCPA.World. This information is sourced from TCPA.World.