Recently, the FCC issued a declaratory ruling and order announcing that a peer-to-peer (P2P) messaging platform requiring each message to be manually entered by a person is not an Automatic Telephone Dialing System (ATDS) under the TCPA. The FCC also clarified that the ability of equipment to send large numbers of calls or texts is not relevant for determining whether the equipment is an autodialing device. The declaratory ruling provides the latest guidance from the FCC defining an ATDS. The new ruling and order arrives just as several federal courts have issued conflicting interpretations of the TCPA’s ATDS definition.
In the underlying request, the petitioner asked the FCC to declare a specific P2P text messaging service was not an ATDS under the TCPA. The TCPA prohibits certain text messages and calls to consumers without express consent when those messages are sent by an ATDS or uses an artificial or prerecorded voice. Under the TCPA, an ATDS is defined 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 petitioner’s texting program did not have the capacity to store or produce numbers to be called, using random or sequential number generation. In addition, the platform operated by having a person manually dial each consumer’s number and sending messages one-by-one. Each message could also be modified by the operator before it was sent.
The FCC explained that a key feature of ATDS equipment is the ability to dial random or sequential telephone numbers without human intervention. If the platform cannot dial the numbers without a person manually dialing each number, the device cannot be an ATDS. Since the P2P platform could not make calls or send texts without a person manually dialing the numbers, the FCC ruled the device was not an ATDS. The FCC limited their ruling to the specific platform presented by the petitioner and did not rule on whether P2P platforms generally would meet the definition of an ATDS.
For more information on the ATDS issue, please see WBK’s prior coverage of the D.C. Circuit, Second, Third, Ninth, and Eleventh Circuit’s rulings.