Will You be Sued For Using Dialers? The Courts Are on Your Side

Last Updated May 21, 2024

Automatic Telephone Dialing Systems (ATDS) have been at the heart of a growing battle between dialers, private citizens, the regulatory authorities enforcing the Telecom Consumer Protection Act (TCPA), and litigators who see class action suits behind every bush.

What is an ATDS and TCPA regulations?

Back in the day (i.e., late 80s, early 90s), dialing software would simply generate numbers and dial them out. These weren’t numbers from a list or registered somewhere. The software created a 10-digit number and dialed every single version on the off-chance it was someone’s home landline number.  Or they would begin with 1111111111 and then dial every single number till 9999999999. 

It was chaos—emergency numbers, every business’s number, and even things like elevators would be flooded with calls and pre-recorded voice messages. 

Sections of the TCPA regulations ended this by deeming such ‘automatic’ dialing illegal. The fine is $500 PER CALL if you unintentionally did so and $1500 PER CALL if you did it on purpose. There is no ceiling to this fine (ViSalus was given a record-setting $950 million fine), and any private citizen can file a case against you—even a class action case. 

TCPA challenges to calling platforms

The standard for what is illegal was twofold: One set by the law and the other by the courts. The law standard was if the number was randomly or sequentially generated. The court standard was if there was substantial ‘human intervention’ in the dialing process. Interestingly, human intervention did not mean dialing all ten numbers. Rooms of people hitting just the ‘dial’ button repeatedly were considered a human intervention. 

Among the major challenges to this, two were of serious consideration for those in the outreach technology community: 

  • Am I going to get sued? And if I do, how badly will I be sued?
  • What kinds of ATDS software are illegal? (ATDS is not illegal as a concept. Only some use cases)  

Major TCPA cases that affect dialers and calling platforms

The major case that brought these questions to the forefront is the 2021 Facebook, Inc. v. Duguid, 592 U.S. 395 (2021)

In this class action suit against Facebook, Noah Duguid alleged that the messages he had been getting from Facebook about suspicious activity on his account were from an ATDS, simply because – he never had a Facebook account in the first place! (The messages were sent automatically with no human intervention). 

So, how did Facebook get his number? He wanted the courts to define Facebook’s system of sending these alerts as an ATDS and pay the $1500 per message fine. The Federal government, interested in protecting the TCPA, joined the case on Facebook’s side.  

The case wound its way through various courts before finally being settled by the US Supreme Court, which essentially said – 

An ATDS must have the “capacity to use a random or sequential number generator to either store or produce phone numbers to be called.” As Justice Sonia Sotomayor wrote, “equipment that merely stores and dials telephone numbers … would capture virtually all modern cell phones.”

So your calling platform dialers are not illegal if they: 

  • Call a list of contacts who have given their consent 
  • Do not generate random or sequential numbers to make calls 

In Duguid’s case, the court said his number was a mistype, not a generated number from an ATDS system. 

Interestingly, the Court also refused to adopt a ‘human intervention test’ when assessing the TCPA’s ATDS definition, stating that all devices require some human intervention to set up. The Court felt this made the test arbitrary. 

Because the Supreme Court refused to interpret how much human intervention is required, this test will no longer be a standard of interpreting whether a dialing system is an ATDS. 

Now, you can have software dial numbers for you, with no human intervention for each dial, as long as those numbers are not generated out of thin air.

The next big challenge to this came this year from a particularly famous serial litigator – Andrew Perrong. In Perrong v. Montgomery County Democratic Committee, 2024 WL 1651274 (3rd Cir. 2024), he sued the Democratic Party for contacting him without his consent.  

His argument was that the Democrats’ actions should be considered ATDS because they used a randomizer to select which number to contact from an existing list. 

Here’s what the Third Court of Appeals had to say – 

“Perrong fails to explain how the defendants’ calling method risks dialing emergency lines or tying up sequentially numbered business lines. This lawsuit is a case in point: Perrong received a targeted phone call (addressing him by name) that urged him to vote for a political party in his county’s general elections. Thus, the defendants did not use an ATDS to call Perrong. ”

This ruling was further strengthened by the Second Circuit Court of Appeals ruling in a case against Subway. The plaintiff, Marina Soliman, sued Subway for text messages she received. She tried to use TCPA to fine Subway for ATDS violations and appealed when the court tossed the original case out. 

The Court confirmed two important principles: 

  • ATDS is a system that randomly or sequentially generates telephone numbers.
  • The system’s ability to create random or sequential numbers for any other purpose was irrelevant as long as it was not making telephone numbers.

This should be a relief to those looking to reach potential voters or consumers since it adds another clarification to the ATDS argument—it is not an ATDS if it can’t dial random numbers outside of its call list or create numbers on its own. 

CallHub dialers stay ahead of TCPA regulations 

All of this confirms the pathway adopted by CallHub in the last couple of years. CallHub’s calling centre system: 

  • Cannot create phone numbers out of thin air either randomly or sequentially. 
  • Allows calling of numbers without human intervention for each dial or text
  • Does NOT randomize the list at all (clients must specifically choose the list call order and can only dial numbers from the list net)
  • Does NOT call any known litigators

As CallHub’s Sam Briggs says – “These sorts of cases are expensive, even if you are not guilty. The discovery process can cripple you. We ensure that CallHub dialers are not ATDS by any definition. We make sure you don’t break the law.” 

Without the human intervention requirement, you can choose how your calls are made and how quickly. CallHub’s dialers give a range of options, depending on the use case. 

  • Auto dialer: The dialer ensures it connects calls as soon as your agents are free to talk by constantly dialing numbers in the background and connecting them to free agents. 

Depending on the number of agents you are fielding and your average answer rate, you can increase the dialing ratio from 1:1 (calling one new number for every agent who is primed to be available momentarily) to 3:1 (dialing three numbers for every prompt). This lets you complete calling lists with thousands of contacts in a reasonable time period. 

  • Predictive dialer: If you don’t want to complete through the contacts as fast as possible and also ensure you maximize the talk time of your agents, then the Predictive dialer takes the hassle out of your hands by determining the call ratio automatically and connecting the first free agent when available.  

If call drops are a major issue, this helps you reduce those numbers as well – while making sure agents are never left waiting for a call. 

  • Power dialer: For the slow and steady campaigns, where you want the agent to have the time for long conversations without the pressure of another call waiting in the line. 

The dialer gives you the features you need to make calls efficiently – like auto dialing and skipping unanswered calls, but will only start dialing once the agent asks it to. 

While CallHub’s dialers are compliant and will ensure your campaign is always on the right side of the law, this does not mean you might never face a case. 

To be clear, when it comes to litigators like Perrong, the cases are filed despite no clear illegal actions.  So, would you face such a case even if you are compliant? 

“Yes,” says Sam. “Compliant or not, these people file the case anyway, hoping you will settle rather than go through the courts to prove your innocence. Our system removes known litigators like Andrew Perrong from your lists, so you never face such a case.” 

The CallHub system instead allows you to maximize your contact lists worry-free – by giving you options like importing verified numbers from your CRM, creating segmented lists from master lists of contacts, and distributing those lists to agents. 

You can even empower field offices by letting them run parts of your call campaigns on their own initiative through sub accounts that run their own calling lists under your supervision.  

Overall, the results of these cases prove that CallHub’s choices in maximizing calling for its clients was the right way to go. And the future looks bright for outreach campaigns using dialers.