Consumer Finance Litigation

In Hunt v. 21st Mortgage Corp., No. 2:12-CV-2697-WMA, 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013), the Northern District of Alabama rendered an important decision regarding what constitutes an "automatic telephone dialing system" ("ATDS") under the Telephone Consumer Protection Act ("TCPA") in the digital age, holding that a system constitutes an ATDS only if it has the present capacity, at the time the calls were being made, to randomly dial phone numbers. The plaintiff, who had brought claims under the TCPA, sought to compel inspection of the defendant's telephone system. The plaintiff believed that the telephone system might constitute an ATDS under the TCPA, that is, "equipment which has the capacity--(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." 47 U.S.C. § 227(a)(1). The defendant opposed the motion in part on relevancy grounds, arguing that "the evidence is undisputed that the subject telephone system as installed and used by Defendant never had the use of an autodialer, predictive dialer or any recording capability." The plaintiff believed, however, that even if defendant did make all calls to him manually, it still made the calls using an ATDS because "certain software could have been installed onto defendant's system which would have made automatic dialing possible." The court ultimately compelled inspection, noting that the plaintiff was not required to take the defendant's word on the capabilities of its phone system. However, the court held that the plaintiff's interpretation of the definition of ATDS was problematic "in today's world, [where] the possibilities of modification and alteration are virtually limitless." For instance, the court noted, under plaintiff's reasoning, iPhone users could be subject to TCPA liability simply because software could be written that would allow iPhones to store numbers and call them randomly. Therefore, the court held that a telephone system must have the present capacity to call numbers randomly in order to constitute an ATDS. That is, "if substantial modification or alteration of the system would be required to achieve that capability," a telephone system could not be deemed an ATDS. For more information on consumer finance litigation topics, please contact one of the Burr & Forman team members for assistance. We are happy to answer any questions or concerns you may have.