Court refuses to reject TCPA ATDS claim


I know I’m supposed to take a nap, but I was just sneaking around when this huge (bad) decision crossed my desk. (You know it always happens… I’m leaving, big news TCPA.)

So last week I reported on a case that Facebook Fn7 is only dicta and devices that use a RoSNG to determine the dialing sequence do not not trigger status.

Well, get ready to start the whiplash all over again.

Today we have a case which directly holds the opposite – FN7 is binding and considers any system that uses an algorithm to automatically determine the dialing sequence to be in itself an ATDS.


Listen, the Tsar has lived in this space for 12 years. I know this stuff inside and out. This back and forth is exactly what I expected to see on Fn7. Believe me when i say more of this seesaw battle is coming.

I have been ahead from the start. That’s why I keep telling everyone-numbering sequence, numbering sequence, numbering sequence. (and human selection systems, Human selection systems, Human selection systems.)

In McEwen v. Nra of Am. & Infocision, n ° 2: 20-cv-00153-LEW, 2021 US Dist. LEXIS 242273 (D. Me. December 20, 2021), the court authorized the filing of an amended complaint ruling that a modification asserting that the appellant’s system was an ATDS would not be futile.

The defendant disputed that the allegations in the complaint did not demonstrate random calls. The court seemed to agree, but the randomness of the phone numbers didn’t matter:

The fact that InfoCision initially acquires telephone numbers from its customers or third-party suppliers has no bearing on whether InfoCision’s autodialer is considered an ATDS.

Uh oh.

While many recent cases have looked at where the numbers come from to assess ATDS use and have stopped, the McEwan the case finds the question irrelevant.

You see where this is heading.

The Court continues:

Facebook clarified that the TCPA defines an ATDS in disjunctive form: a device must either store phone numbers using a random or sequential number generator, or produce numbers using a number generator. random or sequential. Thereby a device that calls phone numbers from a “pre-produced list” can still be an ATDS, as long as it “uses[s] A random [or sequential] number generator to determine the order in which to choose “numbers from the list or otherwise store the list of numbers using a random or sequential number generator. Identifier. to 1172 n.7.

A cold stone joint of the interpretation of the dream of the seeker of Fn7. Any device that uses a RoSNG to determine the dialing sequence is an ATDS.

But wait. It’s getting worse.

So too bad :

Plaintiff’s claims, if true, exactly describe such a device: InfoCision maintains one or more lists of phone numbers, which are automatically retrieved from the list using an algorithm and robotic dialed into it. order in which they are selected.


Is dialing in the order in which the numbers are chosen by an algorithm sufficient to trigger the use of ATDS?

Why TCPAWorld? Why?

Show me a dialer whose campaign list is not chosen by an algorithm. Of course, the algorithm can be smartly designed based on campaign parameters and business rules. always another algorithm. So now, any system that automatically dials from a list where the order is determined by campaign rules is potentially an ATDS, at least at the pleading stage.


McEwan is arguably the worst case of ATDS to date Facebook. It directly adopts the caller bar reading of Fn7, namely that using RoSNG to determine the dial sequence is equivalent to using ATDS. And it goes even further, now that any automatic selection of numbers from a list triggers inference of ATDS usage. Sounds much like Florida.

And to think, the original McEwan refueling – one of the first next Facebook– was actually a pretty big win for the defensive bar. Now, it just evaporated.


I hate to part with you for the year in this TCPA.World way. But I hope you all find a human selection numberer under your tree this year.

Now I I will really hibernate.

Happy solstice TCPAWorld.

© Copyright 2021 Squire Patton Boggs (US) LLPRevue nationale de droit, volume XI, number 355


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