• TCPA Hot Issues - TCPA Restricts Autodialed Calls, but Courts Split on Meaning of Autodialer
  • September 25, 2014 | Authors: Keith J. Barnett; Thomas M. Byrne; Ellen M. Dunn; Juan C. Garcia; Allegra J. Lawrence-Hardy
  • Law Firms: Sutherland Asbill & Brennan LLP - Atlanta Office ; Sutherland Asbill & Brennan LLP - New York Office ; Sutherland Asbill & Brennan LLP - Houston Office ; Sutherland Asbill & Brennan LLP - Atlanta Office
  • To autodial or not autodial, that is the question. The Telephone Consumer Protection Act (TCPA) defines autodialer as “equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, and to dial such numbers.” 47 U.S.C. § 277(a)(1). Courts have split on the meaning of the term “automatic telephone dialing system” (ATDS) under the TCPA, and the Federal Communications Commission (FCC) has yet to rule on several pending petitions seeking clarification on this issue. The uncertainty over the definition of ATDS creates uncertainty over the scope of the TCPA and makes it difficult for businesses using automated communications to ensure compliance and manage litigation risk.

    Recently, the FCC and some courts have taken an expansive view of the term ATDS. The FCC has stated that the definition “covers any equipment that has the specified 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.” In re Soundbite Communications, Inc. Declaratory Ruling, CG Docket No. 02-278 (Nov. 29, 2012). According to the FCC, the definition of ATDS encompasses a predictive dialer where “hardware, when paired with certain software, has the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers.” Id.

    Some courts have appeared to go beyond the FCC’s expansive view, focusing on the equipment’s capacity to store numbers rather than its capacity to actually dial the numbers at random. In one recent case, a Massachusetts district court found that a calling system was an ATDS based on its capacity to store numbers. Davis v. Diversified Consultants, Inc., CV13-10875, 2014 WL 2944864 (D. Mass. June 27, 2014). The court made the decision as a matter of law, even though there was disputed testimony over whether the system had the capacity to generate random or sequential numbers. In the court’s view, the capacity to generate random or sequential numbers was irrelevant as long as the system had the capacity to store numbers and dial them from a list.

    Other courts, however, have taken a narrower view of what constitutes an ATDS. For example, in March a federal court in Pennsylvania held that a text message system did not constitute an ATDS where the plaintiff had not offered any evidence to show that the company’s message system had the capacity to randomly or sequentially generate numbers. Dominguez v. Yahoo!, Inc., CV13-1887, 2014 WL 1096051 (E.D. Pa. Mar. 20, 2014). It was not sufficient that the system in question could store numbers and send text messages to a list. Therefore, the court granted summary judgment in favor of the defendant.

    The lingering uncertainty over the meaning of ATDS, and with it the broader issue of the scope of the TCPA, creates uncertainty and compliance burdens on companies that want to send automated communications to their customers. At least six petitions have been filed with the FCC seeking clarification on these issues. The FCC has accepted comments on several of these petitions but has yet to rule. Disputes over the meaning of ATDS are likely to continue until the FCC provides some clarity on this issue.