As many of our readers are aware, the Telephone Consumer Protection Act (“TCPA”) regulates unsolicited telemarketing calls, texts and faxes that utilize autodialers or pre-recorded messages. Of late, the statute has been the basis for several high profile class action lawsuits.
Autodialer & the TCPA Defined
As previously described on this blog, the Federal Communication Commission (“FCC”) and courts across the country have taken a very expansive view concerning the definition of “autodialer.” To wit, any device that has the capacity to produce, store and call telephone numbers using a random or sequential number generator is considered an autodialer within the meaning of the TCPA.
Due to the huge settlements and penalties being levied against telemarketers under the TCPA, we have advised our clients to broadly construe the definition of autodialer to avoid unwanted litigation and regulatory action. For instance, if you are utilizing any type of call center software as part of your telemarketing operations, you may be using an autodialer within the FCC’s definition. However, it seems that there may now be a trend to rein-in the expansive definition of autodialer under the statute.
Recent Court Case Limits Definition of Autodialer
While it is still a best practice to broadly construe the definition of “autodialer” under the TCPA, the U.S. District Court for the Eastern District of Pennsylvania has taken a narrower view than most courts when it comes to the definition.
The case at issue involves several text messages sent by Yahoo! Inc. (“Yahoo”) to consumers in Pennsylvania that maintained an e-mail account with the company. Yahoo maintained a notification system that automatically converted consumers’ email messages into a truncated format and automatically sent the truncated e-mail messages to consumers via text message. Yahoo did not dispute the fact that its e-mail notification system has the capacity to store consumers’ phone numbers and automatically send text messages. Despite these concessions, the Court ruled that the plaintiff failed to present any evidence that Yahoo’s e-mail notification system has the capacity to “use a random or sequential number generator to store or produce telephone numbers and then send a text message to those numbers” as required by the TCPA. Therefore, summary judgment was granted in Yahoo’s favor and the case was dismissed. In so doing, the Court limited the definition of “autodialer” to telephone dialing technology that can generate (as opposed to merely dial) a list of numbers on a “random or sequential” basis.
Given that insufficient evidence was presented by the plaintiff, the Court did not feel the need to address whether Yahoo had obtained proper consumer consent to send the text messages at issue or whether the text messages were sent with a marketing purpose. Despite the favorable result for Yahoo, precautions should always be taken whenever using automated technology to place/send calls/texts to consumers.
If you are interested in learning more about this topic or need to review your telemarketing practices, please e-mail us at info@kleinmoynihan.com, 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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