ALLEN, MITCHELL & ALLEN PLLC
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 autodialer 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.
On June 18, 2015 the FCC held an open meeting during which they voted 3-2 to approve an omnibus package of declaratory rulings that addressed numerous petitions received by the FCC concerning the interpretation and implementation of the Telephone Consumer Protection Act (“TCPA”). Several of the petitions addressed by the FCC sought clarification on the definition of an ATDS. The full text of the order was released on July 10, 2015.
While the FCC's order claimed that it was providing needed clarification on the issues, much was left uncertain. Indeed the FCC specifically stated "we do not at this time address the exact contours of the 'autodialer' definition or seek to determine comprehensively each type of equipment that falls within that definition that would be administrable industry-wide."
Here is what we do know from the new FCC Order. The FCC has rejected the argument that an ATDS should be limited to a system that has the “current” or “present capacity” to dial numbers randomly or sequentially. According to the FCC, an ATDS now includes equipment that has the “potential functionality” to dial randomly or sequentially. The FCC did state that a system has to have more than “theoretical capacity” to autodial. However, in order to provide an example of what clearly would not be an ATDS, the FCC had to go all the way back to a rotary phone.
Furthermore, several organizations have already filed legal challenges to the new FCC order. For example, ACA International has filed an appeal in the D.C. Circuit Court of Appeals, and the Professional Association for Customer Engagement, Inc. (PACE) has filed an appeal in the Seventh Circuit Court of Appeals. However, it is highly unlikely that either of these cases will be resolved any time soon.