Overview

This article is part of a series of articles we are writing/sponsoring to help our customers understand some of the common regulations around being a telecom provider. We thank Joe Bowser for his kind time in writing blog for us.

We Are Not Lawyers

This discussion concerns a legal topic, but it is not legal advice. It is for introductory, informational purposes only.  As this brief article hopefully illustrates, the facts matter quite a lot, as does the specific venue where a dispute arises.  Context is key, so competent counsel should be consulted before taking action that implicates the TCPA.

This guide was generously written by our Attorney and Friend, Joe Bowser, as part of our push to increase clarity around common Telecom Regulatory questions. Joe is outside counsel to Skyetel and numerous other voice, software, and text message service providers, as well as various brands and lead-generation companies that rely on those types services to engage in lawful communications campaigns.  For over 15 years Joe’s practice has focused in the telecommunications, VoIP, SMS, and consumer-protection and marketing-law sectors.  He is lead defense counsel in various individual and putative-class TCPA cases around the country, and advise various companies on, among other issues, TCPA compliance issues.

In short, Joe is awesome.

TCPA

In my opening article on the TCPA, I provided a brief overview of what the TCPA is and how it may affect your business.

Among other call restrictions, it is unlawful under the TCPA to make any call using an ATDS or artificial or prerecorded voice message to any telephone number assigned to a mobile phone, unless the caller can establish that it has the prior express consent of the called party.

Further, for marketing or advertising calls sent with an ATDS (or with a prerecorded or artificial voice) to a mobile phone, the FCC’s regulations require the caller (or the party on whose behalf the call is made) to have the called party’s prior express written consent.

An Automatic Telephone Dialing System

The term “automatic telephone dialing system” is defined as “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.”  Id. at (f)(2); 47 U.S.C. § 227(a)(1).

After the D.C. Circuit Court of Appeals reversed the FCC’s 2015 ruling of what qualifies as an autodialer under the TCPA, ACA International v. FCC, 885 F.3d 687, 692 (D.C. Cir. 2018), courts have been refashioning the case law around how to apply Congress’s statutory definition of an ATDS to a given dialer technology.

Some courts have adopted a narrow interpretation, such that a system must have the present capacity to generate numbers and dial them.

The Element of Human Intervention

That said, the FCC has long held that the basic function of an ATDS is “the capacity to dial numbers without human intervention.”   In the 2015 TCPA Order, the FCC further reiterated that the prohibitions of 47 U.S.C. § 227(b)(1) did not apply to functions like speed dialing, and that the basic functions of an autodialer are to “dial numbers without human intervention” and to “dial thousands of numbers in a short period of time.”  (By reaffirming these long-standing principles, the D.C. Circuit’s appellate ruling found that the expansive view embraced by the FCC in 2015 was not a product of reasoned decision making.)

However, “ow the human intervention element applies to a particular piece of equipment is specific to each individual piece of equipment, based on how the equipment functions and depends on human intervention, and is therefore a case-by-case determination.”  2015 TCPA Order ¶ 17.  Thus, there is no bright-line test to analyze the human intervention element of a particular dialing system, and cases analyzing whether a given system is an ATDS are typically resolved only after a factual record is established (rather than at the pleading stage as a matter of law).

That said, courts applying the human-intervention test to the type of manual, call-by-call-initiated dialer software, including courts in the Ninth Circuit constrained to follow Marks, have found that the level of human intervention required to initiate a call under such software is sufficient to take it outside the purview of the TCPA’ definition of an ATDS.

Thus, whether a given piece of equipment and/or software qualifies as an ATDS is a fact-specific inquiry and, in many cases, may depend on where a given dispute will be resolved, at least until we have a nationwide standard from the FCC (or Supreme Court).

References

As before, a brief note on the author, and the obligatory disclaimers:   I am outside counsel to Skyetel and numerous other voice, software, and text message service providers, as well as various brands and lead-generation companies that rely on those types services to engage in lawful communications campaigns.  For over 15 years my practice has focused in the telecommunications, VoIP, SMS, and consumer-protection and marketing-law sectors.  I am lead defense counsel in various individual and putative-class TCPA cases around the country, and advise various companies on, among other issues, TCPA compliance issues.

This discussion concerns a legal topic, but it is not legal advice. It is for introductory, informational purposes only.  As this brief article hopefully illustrates, the facts matter quite a lot, as does the specific venue where a dispute arises.  Context is key, so competent counsel should be consulted before taking action that implicates the TCPA.

          At the risk of belaboring the obvious, that is not necessarily the only question that arises in call campaigns.  Sure, you may be able to manually dial someone whose number is not on the National or company-specific Do Not Call list at noon local time on a weekday, but if you’re selling them time shares to a property that does not exist on the moon, the TCPA may not be your problem, but you will of course have others.
               47 U.S.C. § 227(b)(1).
          47 C.F.R. § 64.1200(a)(2); see also 47 C.F.R. § 64.1200(f)(8) (defining the various elements of “prior express written consent”).  The FCC has provided an example of prior express written consent. See In re Rules & Regulations of the Telephone Consumer Protection of 1991, Declaratory Ruling and Order, 30 FCC Rcd. 7961 ¶ 106 n.363 (2015) (providing the following example of “wording necessary to make the disclosures required by the Commission’s rules concerning prior express written consent”: “By texting COUPON from my mobile number, I agree to receive marketing text messages generated by an automated dialer from Macy’s to this number. I understand that consent is not required to make a purchase.”).
               47 C.F.R. § 64.1200(a)(3).
          In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991 et al., CG Docket No. 02-278, July 10, 2015 ( “2015 TCPA Order”).
          See, e.g., Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018); see also Glasser v. Hilton Grand Vacations Co., LLC, 948 F.3d 1301 (11th Cir. 2020); Gadelhak v. AT&T Services, Inc., No. 19-1738 (7th Cir. Feb. 19, 2020). Pinkus v. Sirius Xm Radio, 16 C 10858, 2018 U.S. Dist. LEXIS 125043 (N.D. Ill. July 26, 2018) (dismissing TCPA complaint for failure to allege random or sequential number generation); Gary v. TrueBlue, Inc., Case No. 17-cv-10544, 2018 WL 3647046 (E.D. Mich. Aug. 1, 2018) (random or sequential number generation necessary to be an ATDS); Keyes v. Ocwen Loan Servicing, No. 17-cv-11492, 2018 U.S. Dist. LEXIS 138445, at *15 (E.D. Mich. Aug. 16, 2018) (Aspect predictive dialer not an ATDS because did not dial using random or sequential number generator).
          See, e.g., Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018); Duran v. La Boom Disco, Case no. 19-600-cv (2nd Cir. Apr. 7, 2020).
          See In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 7 FCC Rcd. 8752, 8776 (Sept. 17, 1992) (“The prohibitions of § 227(b)(1) clearly do not apply to functions like ‘speed dialing,’ ‘call forwarding,’ or public telephone delayed message services (PTDMS), because the numbers called are not generated in a random or sequential fashion.”)
             Report and Order, In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278, FCC 03-153 ¶ 132 (July 2003).
number individually to initiate the call.”); see also Ammons v. Diversified Adjustment Serv., No. 2:18-cv-06489-ODW (MAAx), 2019 U.S. Dist. LEXIS 175842 (C.D. Cal. Oct. 9, 2019); Schlusselberg v. Receivables Performance Mgmt., LLC, No. 15-7572(FLW), 2017 U.S. Dist. LEXIS 100710 (D.N.J. June 29, 2017);  Pozo v. Stellar Recovery Collection Agency, Inc., No. 8:15-cv-929-T-AEP, 2016 U.S. Dist. LEXIS 146432 (M.D. Fla. Sep. 2, 2016); see also Collins v. Nat’l Student Loan Program, 360 F. Supp. 3d 268 (D.N.J. 2018);  Hatuey v. IC Sys., No. 1:16-cv-12542-DPW, 2018 U.S. Dist. LEXIS 193713 (D. Mass. Nov. 14, 2018);  Fleming v. Associated Credit Servs., 342 F. Supp. 3d 563 (D.N.J. 2018);  Arora v. Transworld Sys., No. 15-cv-4941, 2017 U.S. Dist. LEXIS 135240 (N.D. Ill. Aug. 23, 2017); Smith v. Stellar Recovery, Inc., No. 15-cv-11717, 2017 U.S. Dist. LEXIS 35658 (E.D. Mich. Feb. 7, 2017).

Similarly, analogous to the agent’s selection of call timing here, several district courts across the country have found that text message systems are not an ATDS when the customer sets the time of message delivery (a text message is treated as a “call” under the TCPA). See Duran v. La Boom Disco, Inc., 369 F. Supp. 3d 476, 492 (E.D.N.Y. 2019) (holding that “because a user determines  the time at which the