FCC Clarifies Autodialer Definition, Including in Bulk Text Message Context

Hinshaw & Culbertson - Consumer Crossroads
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Hinshaw & Culbertson - Consumer Crossroads

The Federal Communications Commission (FCC) recently issued a Declaratory Ruling clarifying the definition of an autodialer. Exactly what constitutes an autodialer under the TCPA has been a burgeoning topic in consumer litigation. The TCPA prohibits any person from texting or calling a cellular telephone number using an automatic dialing system (“autodialer” or “ATDS”) without prior express consent. The TCPA defines an ATDS as equipment which has the capacity to (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.

In 2018, the P2P Alliance, a coalition of providers and users of peer-to-peer text messaging, submitted a petition to the FCC asking for clarification on whether its messaging is subject to the TCPA. In response to P2P Alliance’s petition, the FCC’s Declaratory Ruling clarified and affirmed the following three issues:

  1. The fact that calling equipment is used to make calls or send texts to a large volume of telephone numbers is not probative of whether the equipment is an autodialer under the TCPA.
  2. Whether the calling equipment is an autodialer turns on whether the equipment is capable of dialing random or sequential telephone numbers without human intervention.
  3. Even when an entity uses an autodialer to call or send text messages to a telephone number, it may still avoid TCPA liability by obtaining the recipient’s prior express consent.

The FCC’s June 25th ruling does not take a position on whether any particular text equipment is an autodialer, but provides clarification for entities using dialing or texting platforms that can be subject to the TCPA. The FCC’s ruling aligns with the Seventh and Eleventh Circuits on the definition of an autodialer. However, it conflicts with a Ninth Circuit ruling, which held that an ATDS includes equipment that can automatically dial telephone numbers stored in a list.

The FCC ruling provides some helpful guidance to entities within the industry, given the circuit split described above.

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