Interesting TCPA development.

[Acidshock]

Read this article today. Not sure if anyone else has seen it but a judge threw out a TCPA case recently because he properly interpreted the law. Basically he found that since the dialer wasn't generating the numbers but rather they were being loaded it didn't qualify as an ATDS.

http://www.winston.com/en/privacy-law-c ... ments.html

[williamconley]

1) Single superior court judge's opinion on summary, possibly due to "no-show" of opposition (which often results in summary judgement due to whatever reason was brought up ... but the real reason is lack of prosecution). Regardless, it does not make it case law unless you are in his jurisdiction and will likely be overturned on appeal unless the original case was written as one based on generated numbers (which seems unlikely) or unless the suing party has run out of Ca$h (much more likely) or settled out of court for an undisclosed sum and just didn't bother showing up for court (which may have been a requirement for the settlement ... anything is possible).

2) I do not see an actual reference to an actual case. This could also merely be a lawyer's method of generated call center business. Avoiding showing the true case details could easily mask that "nobody showed for court" possibility as the true reason for the summary judgment.

3) Many other cases have already headed to much higher courts which obviously disagree with this fairly undocumented case.

My conclusion: At this point this particular article has as much validity as the "Florida University created the 'love-bug' species through DNA manipulation and set them free on the everglades" articles. (To be honest I didn't read it that thoroughly, but I'd not put any stock in it without case details ...).

[Acidshock]

Found two more places. One mentions the docket number.

http://m.reedsmith.com/california-state ... 0-27-2013/

http://m.klgates.com/files/Publication/ ... 022013.pdf



Also DirectTV brought the case up to the FCC in their comments against the recent FCC TCPA addendums.

http://apps.fcc.gov/ecfs/document/view?id=7520963825

Now don't get me wrong. I'm not saying it's golden or concrete. However it's a start in the right direction.

[williamconley]

And yet the actual case is still invisible on the web. Does get several mentions by many (widespread, credible) sources. Improvement, but then again dangerous.

Many legal sources are trying to quash the autodialer definition to state the without a Generator (of its own), it's not an autodialer. Previous suits presumably went with the "capacity to store" and (must have) allowed for an external "generator" to supply the numbers to be store (should the need arise, even though you may not have used such a generator).

But they need to be careful because they are making a lot of noise about that generator restriction with high hopes that this technicality will "get them off the hook" by using the argument that this "generator" was somehow the crux of the reasoning behind the law. Back from the days when any Call Center would generate 1,000,000 numbers with Excel (if they had a recent version of Excel capable of 1M records) and then just dial them.

When the reality of the matter is that this is about AutoDialers and if the law is forced to be "looked over" instead of just "quick changed", it will be rewritten to disallow based on "automatically dialing" without a human entering the phone number by pushing each button. Suddenly that will cover even MORE equipment and situations.

Then the argument is "well, that would cover cell phones, too! they can generate a call without human intervention!"

The answer will be: Then A, don't use automation in a cell phone to call the general public (ie: people you don't actually know) and B, redefine it to remove "capacity" and simply state "if a human did not enter the number, one digit at a time, into a phone and then press a button to dial said number ... that was an autodialer! Be it a Cell phone, soft phone, server, text, etc: autodial".

So there may be forward progress based on your point of view, or it may get worse based on your point of view. Those who Sue based on TCPA could get a great bonus if this changes, or they may merely have to sue those who use equipment that includes a generator ... but somehow I don't think that's the way it'll go.

And I *still" have not seen the actual ruling, which is odd, because stuff like this is usually published loudly. Oh well. Get some popcorn and sit back. Gonna be a long show i think.

Now I really do want to read the actual docket decision. LOL

Funnier yet: If this does get an "interpretation ruling" that says generator is required ... will call centers merely "relax" and be sure they do NOT have a generator? Or ... the next day will 500 rooms "fire up" and cause the rule to be changed within six months (probably be some sort of Emergency Rulemaking session). That's where the popcorn comes in.