D.C. Circuit Vacates FCC’s Autodialer Definition Interpretation

Print Friendly, PDF & Email

February 20, 2018

autodialer
Autodialer Definition

Late last week, the United States Court of Appeals for the D.C. Circuit issued its long-awaited decision on the challenge to the Federal Communications Commission’s (“FCC”) 2015 Order interpreting the Telephone Consumer Protect Act (“TCPA”).  While the D.C. Circuit touched upon various aspects of the FCC’s 2015 Order, it was particularly pointed in its criticism of the FCC’s guidance regarding autodialers or automatic telephone dialing systems (“ATDS”).

What are the major takeaways from the D.C. Circuit’s decision?

The most contentious aspect of the FCC’s 2015 Order was its broad expansion of the ATDS definition.  The FCC had adopted an interpretation of ATDS that included all dialing equipment that had both the present and potential future capacity to make autodialed calls.  The D.C. Circuit agreed with the myriad challenges to this overly-expansive interpretation of the ATDS definition, which swept within the term virtually all telecommunications devices, including smartphones.  The Court reasoned that the TCPA could not reasonably be interpreted to effectively prohibit the use of smartphones (to call and send text messages), the most ubiquitous form of modern communication equipment.  As a result, the D.C. Circuit vacated as unreasonable that portion of the FCC’s order involving what devices qualify as autodialers within the meaning of the statute.

The D.C. Circuit also examined the FCC’s interpretation of what functions dialing equipment must be capable of performing in order to be considered an autodialer under the statute.  Specifically, the Court found that the FCC was not clear in the 2015 Order as to whether dialing equipment must be able to generate random or sequential numbers in order to be considered an ATDS or whether dialing equipment can be an autodialer even if it lacks that capacity.  By way of example, the Court took issue with the fact that some predictive dialers lack the capacity to generate random or sequential numbers while the FCC nevertheless has categorically deemed predictive dialers to be autodialers for TCPA purposes.  Further, the Court determined that the 2015 Order was not clear with respect to the level of human intervention, or lack thereof, that is taken into consideration when making a determination as to whether a given device is an ATDS.  The Court found that despite the fact that the 2015 Order explained that the basic function of an autodialer is to dial numbers without human intervention, the FCC’s interpretation of the ATDS definition meant that a device could still qualify as an ATDS even if it cannot dial numbers without human intervention.  The Court found that this inconsistency failed to “satisfy the requirement of reasoned decision making” and was, therefore, arbitrary and capricious.  As a result, the D.C. Circuit set aside and vacated that portion of the FCC’s 2015 Order involving the “capacity” issue.

The Implications of the D.C. Circuit’s Autodialer Decision

Just as the FCC’s 2015 Order proved seismic to the telemarketing industry at the time, helping pave the way for an explosion in TCPA lawsuits, the D.C. Circuit’s ruling is likely to be equally pivotal in providing a useful tool in defending against such lawsuits.  Furthermore, given that the composition of the FCC has changed since the 2015 Order, it is likely that the next iteration of TCPA guidance that comes down from the FCC will be far less hostile to telemarketers.  Against this backdrop of abrupt change in the TCPA regulatory environment, it is imperative to have telemarketing practices and procedures examined by experienced counsel.

If you are interested in learning more about this topic, need to review your telemarketing practices and procedures or if you are the subject of a TCPA lawsuit, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

Attorney Advertising

Facebook Argues Definition of “ATDS” and “Emergency” Call in TCPA Lawsuit

Human Intervention Defeats TCPA ATDS Claim

Twilio Narrowly Avoids TCPA Lawsuit Liability

David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

Schedule a Call
In The Know

Trending Topics

New York Sweepstakes Law blog- Klein Moynihan Turco

New York Sweepstakes Law: Are You Compliant?

Print Friendly, PDF & Email

In general, a lottery exists when entrants pay for the chance to win a prize. States alone reserve the right to administer lotteries. Businesses can eliminate one element of what would otherwise be an illegal lottery, in order to transform it into a legal promotional game. If the requirement to

TCPA surveys

An Ad or not an Ad: NY Weighs in on TCPA Surveys

Print Friendly, PDF & Email

Another day, another court decision that refines constitutes a Telephone Consumer Protection Act (“TCPA”) unsolicited fax advertisement. A Manhattan-based federal court recently issued a decision that removes faxed invitations to participate in a survey from the TCPA definition of advertisement. In drawing this distinction for TCPA surveys, the Court held

NY sports gambling law- Klein Moynihan Turco

Agreement Reached to Enact NY Sports Gambling Law

Print Friendly, PDF & Email

This week, Governor Andrew Cuomo and the New York State Legislature agreed to a budget deal that will bring mobile sports betting to the State through a unique NY sports gambling law.  Upon the Governor’s signature, NY sports gambling is primed to become the nation’s largest market. However, New York

UK and US Social Media Influencer Laws

UK and US Social Media Influencer Laws

Print Friendly, PDF & Email

In September of 2020, the United Kingdom’s (“UK”) Committee of Advertising Practice (“CAP”) reviewed the Instagram accounts of 122 UK-based social media influencers to determine whether content was being properly flagged as advertising in accordance with applicable social media influencer laws. This past March, the UK Advertising Standards Authority (“ASA”)

Running a Telemarketing Business?

Get a Free Compliance Review From an Experienced TCPA Lawyer.

Share on facebook
Share on google
Share on twitter
Share on linkedin