IMPORTANT April 1, 2021 UPDATE: U.S. Supreme Court Issues Long Awaited Decision on Facebook's Autodialer Appeal.
The U.S. Supreme Court ruled (unanimously) in favor of our industry, correctly holding that to be considered an autodialer (ATDS) under the TCPA, the dialing system, "must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator." I.e., if the calling system lacks the capacity to store or dial numbers randomly/sequentially, it is not an autodialer. This is welcome news and a victory for legitimate businesses who need to efficiently contact their customers and prospects. Numerous pending and stayed (postponed) TCPA lawsuits will likely be dismissed as a result of today's decision. How will the FCC react? How will congress react? How will Plaintiff's lawyers adjust their strategies? Will there still remain ambiguity regarding what "capacity" means? Much is still unknown. Many TCPA rules remain the same, of course. Among other things, the TCPA still restricts the delivery of recordings whether or not an ATDS is used. It also prohibits marketing calls to numbers on the DNC database, regardless of the dialing technology. Nevertheless, the Court's ruling rebuts a long-used plaintiff's argument treating virtually everything as an autodialer. In the words of Justice Sotomayor, "expanding the definition of an autodialer to encompass any equipment that merely stores and dials telephone numbers would take a chainsaw to these nuanced problems when Congress meant to use a scalpel." Boom.
Many telemarketers and call centers struggle to understand the definition of an autodialer. The short answer is that the FCC defines an autodialer (automatic telephone dialing system or "ATDS") as equipment which has the capacity to dial without human intervention. The longer answer is more complicated and will be explored on this website. Additional information can also be found on AutodialerLaw.com. We will also update this site with important court cases that define what an autodialer is and explain the ATDS issue in more detail. To learn the complex and fluctuating definition of an autodialer, read the information on this site and then call an experienced telemarketing compliance lawyer. Also follow our TCPA autodialer blog at TCPAlegalblog.com. Be the hero at your company by understanding what an autodialer really is and saving your company from autodialer fines and lawsuits.
Federal law makes it illegal to call a wireless phone using an automatic telephone dialing system (“ATDS”) for telemarketing purposes without prior express written consent. This consent is somewhat difficult to obtain under the new rules. An ATDS is “equipment that has the capacity to (a) store or produce telephone numbers to be called, using a random or sequential number generator; and (b) to dial such numbers.” The key term in this definition is “capacity.” The FCC has held that this definition covers any equipment or software which has the capacity to generate numbers and dial them without human intervention, regardless of whether the numbers called are randomly or sequentially generated or come from calling lists.
From a compliance standpoint, all forms of preview dialing are safer than predictive and prerecorded telemarketing. This is because there are no abandoned calls and the consumer often cannot distinguish between a preview-dialed call and a call dialed without the assistance of software. However, certain risks remain. If a dialing system has the capacity to dial without human intervention, even if it is not used in that manner, then the system itself is an ATDS and may not be used to call cell phones without written consent.
A somewhat grey area exists as to what the word “capacity” means in this context. Courts have struggled to interpret this rule and have reached different and sometime conflicting conclusions. One federal court held a call center liable for using an ATDS when the software program used to preview dial also had the functionality to make predictive calls. Another recent decision held that a phone system that would not be able to autodial without substantial modifications was not an ATDS because it lacked the “present capacity” to autodial.
Consider having a telemarketing attorney audit your telemarketing campaigns.
If you are a business owner and you have any questions about the definition of an ATDS, or would like to speak with a legal expert on the matter, contact Allen Legal for a free consultation at 801-930-1117.
What is an ATDS?
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