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There are many regulations in the books that have been designed to protect consumers, and violating them can be a very costly mistake, whether it was simple human error or intentional. And the courts are there to make these judgments when suits are brought up by individuals and regulators. A recent California court ruling declared a desk telephone is not an automated telephone dialing system (ATDS), because when a call was made to a plaintiff that brought a suit against Dun & Bradstreet (News - Alert), the device in question, the Avaya 4610 desktop phone cannot, by itself, be used as an autodialer.

This is an important point, because if a person dialed the number, the manual use of the desktop cannot trigger the Telephone Consumer Protection Act (TCPA) liability under the agency's "potential capacity" standards for an ATDS, according to Christine M. Reilly and Marc Roth in an article written on Lexology.com.

The TCPA became law in 1991, and the FCC (News - Alert) is the gatekeeper that makes sure everyone is abiding by the Act. It basically deals with the use of automated dialing equipment and prerecorded messages, telemarketing calls using “live” callers, fax transmissions and the national Do-Not-Call list.

Based on this act, if anyone receives telemarketing calls, unsolicited faxes, prerecorded calls, or autodialed calls to cell phones, and the caller violates the TCPA, a lawsuit can be initiated. The statutory damages are anywhere from $500 to $1500 for each violation. That may not seem like it is much, but if hundreds, thousands and in some cases tens of thousands of texts or calls are made, it can add up to millions of dollars.

One of the biggest reasons for lawsuits is the violation of the Do Not Call Registry, which was the case in the Dun & Bradstreet suit brought on by Holly Freyja. In its defense, the company said the call was made by a third-party contractor who was a sole proprietor using an Avaya (News - Alert) 4610 desktop telephone. Since the phone is not designed to make automated calls and someone had to press each digit manually, the company was not liable.

As defined by the TCPA, an ATDS is a piece of "equipment which 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," per Section 227(a)(1) of the TCPA.

In the article, U.S. District Court Judge Dale S. Fischer quoted a recent FCC order which clarified what constitutes an ATDS: "The Commission has long held that the basic functions of an autodialer are to 'dial numbers without human intervention' and to 'dial thousands of numbers in a short period of time,'"

The court said, "The undisputed facts demonstrate that Plaintiff was not called from an ATDS." The court added, "Evidence demonstrated that the Avaya 4610 desktop phone cannot, by itself, be used as an autodialer. At best, it could be used to receive calls from an autodialer if the agent's computer had the appropriate software, the agent had proper login credentials, and the dialer was appropriately configured."

The rules in the TCPA as well as other regulatory mechanisms that are in place to protect consumers have mercurial definitions. In many instances, it takes judges and the regulatory bodies that have been entrusted to ensure the laws are not violated to clearly identify what something means.

As Christine M. Reilly and Marc Roth said, “The desktop telephone used by the third-party contractor required numbers to be dialed by hand and this manual effort requiring human intervention resulted in dismissal of the lawsuit. While the judge had no trouble making the call in this case, other courts across the country have struggled with what constitutes an ATDS.”