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The Telephone Consumer Protection Act (TCPA) takes great pains to ensure that predictive dialers do not cross the line and harass the general public. Unfortunately, however, the Federal Communications Commission (FCC (News - Alert)) has yet to clarify exactly what constitutes an autodialer. This has led many firms to legal uncertainty about how and when they can place calls.

The courts have split on the meaning of the term “automatic telephone dialing system” (ATDS) under the TCPA, and the FCC has not yet ruled on several pending clarifications to this issue.

Without clarification, there is substantial legal uncertainty regarding compliance and risk mitigation regarding automated communications.

Some courts have taken an expansive view of what constitutes an ATDS. In re Soundbite Communications, Inc. Declaratory Ruling, CG Docket No. 02-278 (Nov. 29, 2012), the definition of ATDS included 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,” according to the Association of Corporate Counsel.

Other courts have gone even further, focusing on the equipment’s capacity to store numbers rather than its capacity to actually dial them at random. A Massachusetts district court recently found that a calling system was an ATDS based on its capacity to store numbers. In Davis v. Diversified Consultants, Inc., CV13-10875, 2014 WL 2944864 (D. Mass. June 27, 2014), the court made a determination that even though there was disputed testimony over whether the system had the capacity to generate random or sequential numbers, 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.

Not all courts have been expansive, however.

This past March, a federal court in Pennsylvania decided 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, according to the Association of Corporate Counsel. In 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, so the court granted a summary judgment in favor of the defendant.

Where all this currently leaves businesses is toward caution. If in doubt, follow the TCPA. A good dialer such as that developed by Spitfire can ensure compliance across auto-dial campaigns. And until the FCC clarifies the rules, it is best for businesses to take advantage of such compliance features and follow TCPA rules regardless.