The Telephone Consumer Protection Act (TCPA) defines an auto dialer as “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.”

Using this definition, just last year one court in Wisconsin ruled in Nelson v. Santander Consumer USA, Inc. that a defendant may be liable for violating the TCPA, even if the call is dialed by a live person, so long as the telephone used is capable of making an autodialed call. Fortunately, the court vacated its opinion three months later. While the Nelson opinion is no more, at the time it provided a frightening lesson in how easily a seemingly compliant telephone system could be still construed as falling within the scope of an automated telephone dialing system (ATDS).

The move away from Nelson reasoning