One of the six central provisions of the Telephone Consumer Protection Act, or TCPA, has to do with the use of automatic telephone dialing systems, or ATDS. Essentially, if you are using one of these to place calls to customers, there are many restrictions you need to be aware of, such as the inability to make non-marketing autodialed calls without express consent and restrictions on calls and texts that might charge the person without their express written consent. The TCPA also grants a private right of action to people who suspect violations of this provision, which is why the potentially illegal use of an ATDS is a frequent subject of class action lawsuits. But it is not the restrictions placed on the use of an ATDS that have been making waves recently, but the definition of an ATDS itself, which continues to be modified by different courts through decisions in different class action lawsuits. Here, we’re highlighting some of the recent court rulings that have attempted to interpret the TCPA’s definition of an ATDS and what they mean for companies using these systems.

What the TCPA Says

In the TCPA, an ATDS 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.”

The part about this definition that has always been vague is that it seems that an ATDS that is used to make calls must be able to use a random or sequential number generator, but it is unclear what it must be able to do with said generator.

Facebook v. Duguid – 2021

The limits of this definition were taken all the way to the Supreme Court in 2021, in which the high court ended up reversing a circuit court decision about what defined an ATDS (and how it was different from an autodialer). In this decision, the Supreme Court found that to be considered an ATDS, a machine must use the random or sequential number generator as part of its storage capacity, in addition to its ability to produce numbers (the circuit court decision that this reversed held that the random or sequential number generator only needed to be used to produce numbers).

Despite the fact that this decision was made at the Supreme Court level, in the years since courts have continued to modify the definition of an ATDS.

Borden v. eFinancial – 2022

This decision was made at the Ninth Circuit level, taking the Facebook decision from 2021 and further restricting it. In this case, the court found that to be considered an ATDS, a machine must be using the random or sequential number generator to produce the telephone numbers that are being called. The key difference here is the specifying of telephone numbers being produced by the number generator. Previously, it could be argued that if a machine was using a random or sequential number generator to generate, for example, an order for a list of numbers to be dialed in, it could be considered an ATDS. This decision says no; to be considered an ATDS, that technology must be used to create the numbers that are being dialed. This also affirms that not every auto-dialer is an ATDS. If you are using an auto-dialer that is working from a list of telephone numbers that were not obtained using a random or sequential number generator, it is not an ATDS and therefore you do not need express written consent for all of those calls.

More Recent Implications

While it may seem like the definition of an ATDS has become clearer over the years, courts are still interpreting it in different ways and with different degrees of strictness. For example, in a recent ruling from this year the court chose not to dismiss a claim against a company using a specific auto-dialer and communication platform that could be an ATDS, even though it’s unclear what the platform uses a random and sequential number generator for, if anything at all.

The Bottom Line

All of this is confusing and constantly changing. If you are not following the world of TCPA lawsuits on a weekly basis, it can be difficult to keep up with how the laws are being interpreted and upheld. That said, the bottom line is quite simple: express consent is your savior. Whenever you can get express consent prior to sending communications, whether phone calls or text messages, do it. Obtaining express consent protects you from any possible litigation under the ATDS provision of the TCPA, stopping any issues in this realm from becoming issues at all. And if express consent is not possible, make sure you are very familiar with the platform you are using and that there is no existing or ongoing litigation against it or any claims that it is an ATDS.

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