Feb 2022 - The federal Telephone Consumer Protection Act (TCPA; 47 U.S.C. § 227) and its implementing regulations (47 C.F.R. § 64.1200) regulate the use of automatic telephone dialing systems (ATDS) and artificial or prerecorded voices (“prerecorded messages”) in telephone communications. Generally speaking, the TCPA prohibits using an ATDS or prerecorded message to contact cell phones, and prerecorded telemarketing messages to contact residential phones, unless the recipient has provided and not revoked “consent” to receive the call/text.This FAQ provides an overview of the TCPA’s requirements. Because every type of calling campaign raises different concerns and the TCPA is significantly more complicated than can be presented here, M&S recommends that businesses consult with an experienced TCPA attorney before conducting any type of calling campaign.
What is an ATDS?
An ATDS is “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 FCC has held that a predictive dialer also constitutes an ATDS. When determining whether a system is an ATDS, the FCC and courts often focus on whether it has “the capacity to dial numbers without human intervention.” For example, if a representative must click to dial each number, thenthe system may not be an ATDS because human intervention is required for dialing each number.In 2015, the FCC held that “the capacity of an autodialer is not limited to its current configuration but also includes its potential functionalities.” If autodialing features can be activated or deactivated within the system, or if autodialing features can be added through software changes or updates, the FCC considered such features as part of the system’s capacity and, therefore, relevant when determining whether the system is an ATDS. On March 16, 2018, the U.S. Court of Appeals for the D.C. Circuit vacated the FCC’s potential functionalities test. The Court noted several conflicting views the FCC has taken, and had specific concerns that the overbreadth of the Agency’s interpretation could result in the common smartphone being considered an ATDS. Since the D.C. Circuit’s decision, courts have generally only considered current capacities, including capacities that can be easily activated, akin to “flipping a switch.”The FCC clarified in June 2020 that a peer-to-peer t