An Alabama federal court recently ruled that the limits imposed by the Telephone Consumer Protection Act (TCPA) on the use of autodialers applied only to phone systems that had the “present capacity” to make autodialed calls at the time the challenged calls were made. The court made the ruling in a decision granting the plaintiff’s motion seeking to inspect a telephone system used by the defendant at the time it was alleged to have made illegal autodialed calls to the plaintiff.

The TCPA generally prohibits autodialed or precorded, non-emergency calls to wireless numbers without the called party’s “prior express consent.” (See our prior legal alert for a discussion of the change to the TCPA rules that, effective October 16, 2013, will require the called party’s “prior express written consent” for autodialed or prerecorded telemarketing calls to wireless numbers.) In his complaint, the plaintiff alleged that the defendant had made calls to him in violation of the TCPA. As part of his discovery, the plaintiff sought to inspect the telephone system that had been in use at the time the allegedly unlawful calls were made. (The defendant had replaced the system before the litigation but kept it in storage.)

The defendant sought to block the plaintiff’s motion to compel the inspection, arguing that it made all calls manually. The court rejected that argument based on the TCPA’s definition of an “automatic telephone dialing system,” which refers to a system’s capacity to make autodialed calls. As a result, the court ruled that the plaintiff was entitled to inspect the system at issue to determine whether it had the “present capacity” to make autodialed calls. The court also ruled, however, that the defendant’s system only had the requisite “present capacity” if, at the time the challenged calls were made, the system was capable of making autodialed calls without the need for a substantial modification or alteration.