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The question of what is or is not an “autodialer’ in the call center industry is one that has been debated for a number of years. The Telephone Consumer Protection Act (TCPA) prohibits making any autodialed call or text message to cell phones without the called party's prior express consent, with express written consent required for marketing calls. But if a call is made from an autodialer, is that still disallowed? That’s where the questions come in.

As such, attorneys Ian Vollner and Mark Goodrich of law firm Venable LLP, recently posted a piece on legal website Mondaq, taking a closer look at the issue.

“No one seems to know the full extent of devices that are properly classified as autodialers under the TCPA,” the pair wrote. “As a result, parties have been fighting over the proper meaning of ‘autodialer’ in the courts, and numerous petitions have been submitted to the FCC (News - Alert) requesting clarification. The lawsuits continue to pour in, while the FCC prepares clarifications and guidance that could remove some of the uncertainty.”

The duo went on to clarify the definition of an autodialer as spelled out by the courts: “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."

Upon the FCC’s initial revision of the definitions contained in the TCPA in 2003, it said that “in order to be considered an autodialer, the equipment need only have the 'capacity' to store or produce numbers.”

But Vollner and Goodrich looked at the broader picture and observed that “the statute and FCC's guidance have left open the question of what ‘capacity’ means – specifically, whether it broadly means the ability to store or produce numbers and dial the numbers randomly, or more narrowly means present capacity to function as an autodialer.”

In short, companies which use autodialers to solicit new business, especially from those with which they don’t have a previous connection, are at risk of legal consequences. Dial at your own peril.