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Court Gives Indication of How New TCPA Guidelines Might be Interpreted

TMCnews Featured Article


September 01, 2015

Court Gives Indication of How New TCPA Guidelines Might be Interpreted

By Mae Kowalke, TMCnet Contributor


With all the concern about the recent Federal Communications Commission declaratory ruling on what constitutes an auto dialer and what is acceptable business practices, it is nice to see how the courts are interpreting the new ruling. Early signs: Things are looking good.


The District Court for the Northern District of California just dismissed a Telephone Consumer Protection Act violation claim based on promotional text messages, and it took into account the new rule clarification.

SHAC LLC, operator of a Las Vegas strip club, was sued for sending promotional text messages through a Web-based text messaging platform. The case was dismissed because there was what the court considered to be enough manual intervention that the system did not fall under the definition of an autodialer even though the new rule clarification might have considered the system as one.

The court found that manual steps included cutting, pasting and inserting info to text, adding the customer’s phone number, and hitting the send button in order to transmit, making the system not subject to TCPA rules.

The court took a much narrower view of what constitutes an autodialer than many had feared after the new FCC (News - Alert) clarification.

While the FCC’s recent ruling that Internet-to-phone text messaging technology is expressly included in the definition of an autodialer, and the court mentioned rulings that predictive dialers may be autodialers, it felt that the law was “intended to ensure that robocallers cannot skirt consumer consent requirements through changes in calling technology design or by calling from a list of numbers.”

Instead, the court focused on the FCC’s statement in a 2008 ruling that “the defining characteristic of an auto dialer is the capacity to dial numbers without human intervention.” From that, the court found that human intervention was involved in several stages of the process before the plaintiff received the message. Thus, the system was not an autodialer as such.

This is good confirmation that, just because the FCC has seemingly tightened the definition, it does not mean the courts will consider every device that includes time-saving practices to be an auto-dialer. Many feared that just about everything, smartphones included, might be subject to TCPA rules.

But so far, so good.




Edited by Rory J. Thompson







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