A rose may be a rose by any other name, but when it comes to an auto dialer, it would appear that no one can agree what this humble bit of technology actually is. The commonly used telemarketing technology is gaining a reputation as being the tech that launched a thousand lawsuits.
In the 2015, the Federal Communications Commission (FCC (News - Alert)), which oversees telecom regulation including the Telephone Consumer Protection Act (TCPA), published a 138-page Declaratory Ruling and Order. The agency’s goal was to clarify confusion generated by language in the TCPA. Unfortunately, the ruling has done anything but clarify the issue. On its face, the declaratory ruling seemed simple:
“If a caller uses an autodialer or prerecorded message to make a non-emergency call to a wireless phone, the caller must have obtained the consumer’s prior express consent or face liability for violating the TCPA. Prior express consent for these calls must be in writing if the message is telemarketing, but can be either oral or written if the call is informational.”
Furthermore, the TCPA itself defined auto dialers as “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.” The rule includes predictive dialers, which are defined as “equipment that dials numbers and, when certain computer software is attached, also assists telemarketers in predicting when a sales agent will be available to take calls.”
Several legal cases that have been brought before American courts have actually resulted in conflicting rulings, which has left the telemarketing industry in a greater state of flux than ever before, according to Wilson Barmeyer, Kristine Ellison and Lewis Wiener of the law firm Sutherland Asbill & Brennan LLP, writing for JD Supra Business Advisor. Behind the confusion is how much human intervention is behind the dialed numbers.
“Several courts have applied a practical standard and continued to use the element of human intervention as the touchstone, so that a calling system requiring human intervention has not been held to be an autodialer,” wrote Barmeyer, Ellison and Wiener. “These courts have not expansively interpreted the FCC’s suggestion that equipment that presently requires human intervention can constitute an autodialer if its capacity could hypothetically be upgraded or modified to place automated calls. Other courts, however, may be taking a broader view of the FCC’s Order, though the cases are necessarily fact-specific and varying outcomes can often be explained by differences in the specific facts.”
Some important cases against defendants have been dismissed when those defendants were able to show that there was human intervention in the dialing technology, or that the numbers were from a human-compiled list and not by a “random or sequential number generator.” Other courts have concluded that the attempt to parse the definition of an autodialer was a disingenuous attempt to avoid punishment from breaking the FCC’s rules. Given the effects the confusing legal guidance is having on businesses that rely on telemarketing, it seems likely that the FCC will need to once again issue a declaratory ruling, this time avoiding unambiguous language.