In Upholding the Constitutionality of the TCPA, Court Narrowly Construes Autodialer Definition

TCPAThe United States District Court for the Southern District of Florida recently considered the constitutionality of the Telephone Consumer Protection Act (“TCPA”) in an action involving the alleged use of an autodialer in calling the plaintiff’s mobile phone seeking paid participation in a survey.

The Constitutionality of the TCPA

In De Los Santos v. Millward Brown, Inc., Case No. 13-cv-80670 (S.D. Fla.), the defendant moved to dismiss the complaint on several grounds, including by attacking the constitutionality of the TCPA.  The defendant argued that because the TCPA is not “narrowly tailored to serve a significant government interest,” it is unconstitutional.  When Congress passed the TCPA, it had a significant interest in prohibiting autodialing to mobile phones because phone plans charged users for incoming calls.  The defendant argued that mobile phone users do not incur charges for incoming calls, particularly if they have unlimited use plans.

The defendant further argued that the term “autodialer” under the TCPA includes “many, if not most, devices used by ordinary people to place ordinary calls.”  The TCPA defines the term “automatic telephone dialing system,” or autodialer, to include “equipment which has the capacity . . . to store or produce telephone numbers to be called, using a random or sequential number generator, and … to dial such numbers.”  The defendant argued that today, almost all smartphones – as well as computers that are connected to the Internet – may fall under the definition of autodialer and, therefore, this makes the TCPA overbroad and unconstitutional.

In rejecting the defendant’s arguments and aligning itself with federal courts in other jurisdictions, the court held that the term “capacity” refers to “present, not potential, capacity” to produce and dial numbers.   The court further reasoned that no court in the United States has read the TCPA so broadly so as to include smartphones and computers generally within its purview.


It is important to understand the nuances of the TCPA to ensure compliance, particularly because there are numerous plaintiffs-in-waiting who are seeking to commence suit against potential violators.

If you are interested in learning more about this topic or need to review your telemarketing practices, please e-mail us at, or call us at (212) 246-0900.

The material contained herein is provided for informational 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.

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David Klein

David Klein is one of the most recognized attorneys in the 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.

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